Annabel v. Frost et al

Filing 202

ORDER DENYING PLAINTIFF'S 200 Motion for Reconsideration - Signed by Magistrate Judge R. Steven Whalen. (CCie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT ANNABEL,
Plaintiff,

No. 14-10244

v.

District Judge Arthur J. Tarnow
Magistrate Judge R. Steven Whalen

JACK FROST, ET AL.,
Defendants.
/
ORDER DENYING RECONSIDERATION
On October 9, 2018, the Court entered an order [Doc. #195] denying Plaintiff’s
motion for appointment of an expert witness [Doc. #188]. The following day, October
10, 2018, Plaintiff filed a reply brief in support of his motion [Doc. #196]. Before the
Court at this time is Plaintiff’s motion for reconsideration of the October 9th order
denying appointment of an expert [Doc. #200].
Motions for reconsideration are subject to E.D. Mich. L.R. 7.1(g)(3), which
provides:
“(3) Grounds. 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 have been misled but also show
that correcting the defect will result in a different disposition of the case.”

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In the present motion for reconsideration, as well as in his October 10th reply brief,
Plaintiff suggests that the Court’s previous order denying appointment of an expert [Doc.
#134] was “without prejudice,” and therefore his subsequent motion cannot be considered
an untimely motion for reconsideration.
Plaintiff is correct that the Court’s October 9th order relied in part on the theory
that Plaintiff’s motion was, in effect, a motion for reconsideration of the previous order
denying appointment of an expert, and was therefore untimely under E.D. Mich. L.R.
7.1(h)(1). However, the Court also found that “even if the...motion were considered de
novo, Plaintiff has not shown entitlement to the extraordinary remedy of a courtappointed expert, paid for by a defendant.” (Citing In Dorise v. Cummings, 2009 WL
3462621, at *1 (E.D. Mich. Oct. 23, 2009)). The Court also quoted U.S. Marshals Serv.
v. Means, 741 F.2d 1053, 1059 (8th Cir. 1984), where the Court “strongly emphasize[d]
that this discretionary power is to be exercised only under compelling circumstances.”
The Court did not find compelling circumstances that would justify appointment of an
expert.
In terms of the substance of the October 9th order, the Plaintiff “merely present[s]
the same issues ruled upon by the court, either expressly or by reasonable implication.”
L.R. 7.1(g)(3). Nor has the Plaintiff “demonstrate[d] a palpable defect by which the court
and the parties have been misled,” or shown “that correcting the defect will result in a
different disposition of the case.” Id.

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Therefore, Plaintiff’s motion for reconsideration [Doc. # 200] is DENIED.
IT IS SO ORDERED.

Dated: October 26, 2018

s/R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE

CERTIFICATE OF SERVICE
I hereby certify on October 26, 2018 that I electronically filed the foregoing paper
with the Clerk of the Court sending notification of such filing to all counsel registered
electronically. I hereby certify that a copy of this paper was mailed to non-registered ECF
participants on October 26, 2018.

s/Carolyn M. Ciesla
Case Manager for the
Honorable R. Steven Whalen

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