Wake Plumbing and Piping, Inc. v. McShane Mechanical Contracting, Inc. et al

Filing 67

ORDER Denying 63 Motion for Reconsideration. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WAKE PLUMBING AND PIPING, INC.,
Plaintiff,

CASE NO: 12-12734
HONORABLE VICTORIA A. ROBERTS

v.
MCSHANE MECHANICAL CONTRACTING
INC.,
Defendant,
and
TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA
Defendant.
/
ORDER DENYING MOTION FOR RECONSIDERATION
I.

Introduction
This matter arises from a contract dispute that took place during the construction

of a school in North Carolina. On July 29, 2014, this Court entered an Order denying
McShane’s Motion for Partial Summary Judgment. The Court held: (1) whether an
express contract for the Aboveground Work exists is a question of fact for the jury; (2)
the 73 subcontract is not an express contract between the parties because Wake
objected to it by email on July 18, 2011; (3) claims for promissory estoppel and unjust
enrichment are not dismissed as a matter of law; and (4) McShane may depose
attorney Berlin and obtain documentation related to certified payroll records.
Before the Court is Defendant McShane’s Motion for Clarification or,
alternatively, Motion for Reconsideration (Doc. #63). McShane says (1) the Court’s
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statement that the 73 subcontract is not an express contract was dicta and the Court
mistakenly rejects McShane’s counterclaim; and (2) there is a genuine issue of fact as
to whether Wake accepted the 73 subcontract.
McShane’s Motion for Clarification or, Alternatively, for Reconsideration is
DENIED.
A court may grant a motion for reconsideration if it is demonstrated that a
palpable defect misled the Court in its ruling, correction of which would result in a
different disposition. E.D. Mich. LR 7.1(h)(3).
"It is an exception to the norm for the Court to grant a motion for
reconsideration." Maiberger v. City of Livonia, 724 F. Supp. 2d 759, 780 (E.D. Mich.
2010). "[A]bsent a significant error that changes the outcome of a ruling on a motion,
the Court will not provide a party with an opportunity to relitigate issues already
decided." Id. Palpable defects are those which are "obvious, clear, unmistakable,
manifest or plain." Mich. Dep't of Treasury v. Michalec, 181 F. Supp. 2d 731, 734 (E.D.
Mich. 2002). A party may not introduce evidence for the first time in a motion for
reconsideration if that evidence could have been presented earlier. Shah v. NXP
Semiconductors USA, Inc., 507 F. App'x 483, 495 2012 WL 6013771 (6th Cir. Dec. 4,
2012).
McShane says whether the 73 subcontract is an express contract was not fully
briefed and was not subject to the motion for summary judgment.
The Court disagrees. In deciding McShane’s request to dismiss Wake’s quasicontract claims, the Court first had to decide whether a contract existed between the
parties. It did so.
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McShane says the Court’s finding regarding the 73 subcontract was based on an
incomplete record and there are genuine issues of fact because of: (1) a signed partial
waiver; (2) sworn statement not previously before the Court; and (3) a July 14, 2011
email. McShane also says it is possible Wake accepted the 73 subcontract by
performance because Wake began work after the subcontract was received.
These assertions raise arguments and present documentation not previously
before the Court. This is inappropriate in a motion for reconsideration.

McShane falls

to alert the Court to a significant error which changes the outcome of the case.
McShane requests the Court to award costs because Wake unreasonably
withheld consent to this Motion. In its discretion, the Court concludes that such an
award is not warranted; McShane’s request is denied.
II.

Conclusion
McShane’s Motion for Clarification or, Alternatively, for Reconsideration is

DENIED.
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: October 29, 2014
The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
October 29, 2014.
s/Linda Vertriest
Deputy Clerk

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