Willie McCormick and Associates, Incorporated v. Lakeshore Engineering Services, Incorporated et al

Filing 144

ORDER granting in part and denying in part 142 MOTION for Reconsideration and Amending 139 Order Granting Plaintiff's Motion for Relief from Interlocutory Order to Include Statement Required for Certification of Interlocutory Appeal. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WILLIE MCCORMICK & ASSOCIATES,
INC.,

Case No. 12-15460
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

Plaintiff,
v.

U.S. MAGISTRATE JUDGE
MONA K. MAJZOUB

LAKESHORE ENGINEERING SERVICES,
INC., ET AL.,
Defendants.
/

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
RECONSIDERATION [142] AND AMENDING THE COURT’S ORDER GRANTING
PLAINTIFF’S MOTION FOR RELIEF FROM INTERLOCUTORY ORDER [139] TO
INCLUDE STATEMENT REQUIRED FOR CERTIFICATION OF INTERLOCUTORY
APPEAL

On December 20, 2013, the Court issued an Order [Doc. #96] dismissing
with prejudice Plaintiff’s antitrust and RICO claims against Defendants Anthony
Soave, Lakeshore Engineering Services, Inc., Avinash Rachmale, Lakeshore
Toltest, Toltest Corporation, Thomas Hardiman, A&H Contractors, Inc., Inland
Waters Pollution Control, Inc., Inland/XCel, LLC, Detroit Contracting, Inc., Nafa
Khalaf, and Detroit Management JV Team, LLC (the Dismissed Defendants). On
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August 15, 2014, Plaintiff filed a Motion [128] for relief from the Court’s
December 20, 2013 Order [96]. On August 28, 2015, the Court issued an Order
Granting Plaintiff’s Motion for Relief from Interlocutory Order [139], which
vacated the Order [96] and reopened Plaintiff’s claims against the Dismissed
Defendants. On September 11, 2015, the Dismissed Defendants filed the instant
Motion for Reconsideration [142].1
The Court denies the motion for reconsideration with respect to the merits of
the Order Granting Plaintiff’s Motion for Relief from Interlocutory Order [139].
The Court adheres to its conclusion that the time bar on motions for
reconsideration under the Local Rules of this District did not bar the Court from
exercising its inherent authority to reconsider the interlocutory order. Further,
even if the Court could only exercise its inherent authority to correct a “palpable”
error or an injustice, rather than mere error, the Court believes that that its analysis
of the vacated interlocutory order satisfies such a standard. Finally, the Dismissed
Defendants have cited no controlling authority restraining the Court from

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Plaintiff filed a Response [143] on September 25, 2015. The Court considers the
Response unauthorized under Local Rule 7.1(h)(2).
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reconsidering the interlocutory order solely because it was entered by a previously
assigned district judge.2
The Court grants the motion for reconsideration only to the extent that it
requests that the Court certify the Order Granting Plaintiff’s Motion for Relief
from Interlocutory Order [139] for interlocutory appeal pursuant to 28 U.S.C. §
1292(b). That statute provides as follows:
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 ….
28 U.S.C. § 1292(b). The statute’s procedural requirements are relaxed by Federal
Rule of Appellate Procedure 5(a)(3), which provides as follows:
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To the extent the Dismissed Defendants suggest that the Court showed disrespect
to Judge Cleland or to the principle of continuity, the Court disagrees. Plaintiff’s
motion for relief from the interlocutory order was pending decision at the time the
case was reassigned to this Court. Judge Cleland had ordered the Dismissed
Defendants to file a written response to the motion. Further, in his last act before
the case was reassigned, Judge Cleland had partially postponed his ruling on
Plaintiff’s motion for default judgment against the remaining defendants pending
his resolution of Plaintiff’s motion for relief from the interlocutory order. In this
context, the Court believes that the continuity of the proceedings would have been
disrupted, rather than preserved, if the Court had applied a more stringent standard
to Plaintiff’s motion solely due to the reassignment of the case.
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If a party cannot petition for appeal unless the district court first enters
an order granting permission to do so or stating that the necessary
conditions are met, the district court may amend its order, either on its
own or in response to a party’s motion, to include the required
permission or statement. In that event, the time to petition runs from
entry of the amended order.
FED. R. APP. P. 5(a)(3).
In their supporting brief, the Dismissed Defendants aptly explain why the
Court’s Order Granting Plaintiff’s Motion for Relief from Interlocutory Order
[139] involves four controlling questions of law as to which there is substantial
ground for difference of opinion, and why an immediate appeal from the order may
materially advance the ultimate termination of the litigation. The Court adopts this
opinion of the Order [139] for the reasons stated in the Dismissed Defendants’
brief.3 Pursuant to Federal Rule of Appellate Procedure 5(a)(3), the Court amends
the Order [139] to include the written statement required by § 1292(b). It is the
Court’s understanding and intent that the Dismissed Defendants will have ten days
from the issuance of this Order to apply to the Sixth Circuit for permission to
appeal the Order Granting Plaintiff’s Motion for Relief from Interlocutory Order

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The Court adopts the Dismissed Defendants’ framing of the issues to be certified,
but notes that “even those issues not properly certified are subject to [the Sixth
Circuit’s] discretionary power of review if otherwise necessary to the disposition
of the case.” Pinney Dock & Transport Co. v. Penn. Cent. Corp., 838 F.2d 1445,
1455 (6th Cir. 1988).
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[139]. Nevertheless, the timeliness and propriety of such an application are issues
reserved for decision by the Sixth Circuit. Accordingly,
IT IS ORDERED that the Dismissed Defendants’ Motion for
Reconsideration [142] is GRANTED with respect to certification of an
interlocutory appeal and otherwise DENIED.
IT IS FURTHER ORDERED that the Court’s Order Granting Plaintiff’s
Motion for Relief from Interlocutory Order [139] is AMENDED to include a
statement, as required to certify an interlocutory appeal pursuant to 28 U.S.C. §
1292(b), that the Court is of the opinion that the 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.
SO ORDERED.

Dated: September 28, 2015

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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