Belanger v. Simply Better Management Co., LLC
Order Denying Defendant's 28 Motion for Reconsideration, or, in the Alternative, for Certification to Seek Interlocutory Appeal. Signed by District Judge Avern Cohn. (SCha)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 12-14516
SIMPLY BETTER MANAGEMENT
HON. AVERN COHN
ORDER DENYING DEFENDANT’S MOTION
FOR RECONSIDERATION, OR, IN THE ALTERNATIVE, FOR
CERTIFICATION TO SEEK INTERLOCUTORY APPEAL (Doc. 28)
This is a contract/tort case. Plaintiff Brandon Belanger (“Belanger”) is suing his
landlord, defendant Simply Better Management Co., LLC (“Defendant”) claiming that he
was injured when he tripped and fell on his way to his vehicle from his apartment complex’s
dumpster area due to a hole in the pavement abutting the curb. Belanger’s complaint is
in two counts, framed by him as follows:
Statutory Covenant of Habitability
On July 18, 2013, the Court entered a memorandum and order granting Belanger’s
motion to amend the complaint and granting in part and denying in part Defendant’s motion
for summary judgment (Doc. 26).
Now before the Court is Defendant’s motion for
reconsideration (Doc. 29). Alternatively, Defendant asks the Court to amend its order to
endorse the filing of an interlocutory appeal. For the reasons that follow, Defendant’s
motion for reconsideration is DENIED. The Court likewise declines to amend the order.
II. LEGAL STANDARD
The Local Rules of the Eastern District of Michigan provide that “[a] motion for
rehearing or reconsideration must be filed within 14 days after entry of the judgment or
order.” E.D. Mich. LR 7.1(h)(1). Defendant’s motion is timely.
No response or oral argument is allowed on a motion for reconsideration unless the
court orders otherwise. E.D. Mich. LR 7.1(h)(2).
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.” E.D. Mich. LR 7.1(h)(3). To obtain reconsideration of a court order, “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.” Id. 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).
In the July 18 order, the Court denied summary judgment to Defendant on
Belanger’s breach of contract claim under Mich. Comp. Laws § 554.139(b). The Court
explained that the statutory covenant to comply with applicable state and local health and
safety laws applies to common areas of an apartment complex. Because the Michigan
Supreme Court has not expressly decided the issue, the Court explained that its opinion
was consistent with how it believes the Michigan Supreme Court would rule if faced with
the same issue.
Further, the Court denied summary judgment to Defendant on Belanger’s premises
liability claim. The Court explained that a question of fact remains for the fact finder to
determine whether the hole in the ground constituted an open and obvious danger under
Defendant seeks reconsideration of these two issues. Alternatively, Defendant asks
the Court to certify an interlocutory appeal. The Court considers each issue in turn.
A. Defendant is Not Entitled to Reconsideration
The Court declines Defendant’s invitation to reconsider the July 18 order. Defendant
does not point to a palpable defect that misled the Court. Instead, Defendant rehashes the
arguments it made in its motion for summary judgment. The order adequately expresses
the Court’s rationale and reasoning and further discussion is not necessary.
B. The Court Declines to Amend the Order
Defendant asks the Court to amend the order to include language permitting an
interlocutory appeal under 28 U.S.C. § 1292(b). Because an immediate appeal will not
materially advance the ultimate termination of the litigation, the Court will not amend the
order to include such language.
Section 1292(b) states,
When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion
that such order involves a controlling question of law as to
which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially
advance the ultimate termination of the litigation, he shall so
state in writing in such order. The Court of Appeals which
would have jurisdiction of an appeal of such action may
thereupon, in its discretion, permit an appeal to be taken from
such order, if application is made to it within ten days after the
entry of the order: Provided, however, That application for an
appeal hereunder shall not stay proceedings in the district
court unless the district judge or the Court of Appeals or a
judge thereof shall so order.
28 U.S.C. § 1292(b) .
Arguably, the statutory interpretation of Mich. Comp. Laws § 554.139(b), which is
an issue that has never been decided by the Michigan Supreme Court, necessitates
immediate appeal. However, even if the Court is wrong in its interpretation of Mich. Comp.
Laws § 554.139(b), Belanger’s premises liability claim remains in the case. The premises
liability claim does not present a “controlling question of law as to which there is substantial
ground for difference of opinion.” Thus, an interlocutory appeal will not “materially advance
the ultimate termination of the litigation.”
For the reasons stated above, reconsideration was denied.
UNITED STATES DISTRICT JUDGE
Dated: July 30, 2013
I hereby certify that a copy of the foregoing document was mailed to the attorneys of record
on this date, July 30, 2013, by electronic and/or ordinary mail.
Case Manager, (313) 234-5160
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