Laborers Pension Trust Fund - Detroit & Vicinity et al v. PG Simon On Site Inc.

Filing 21

ORDER Denying 16 Motion for Reconsideration. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TRUSTEES OF THE LABORERS
PENSION FUND-DETROIT &
VICINITY; et al.,
Plaintiffs,
Case No.: 14-14000
Honorable Gershwin A. Drain

v.

PG SIMON ON SITE INC.,
Defendant.
___________________________/
ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION
[#19]
I. Introduction
Presently before the Court is the Defendant’s Motion for Reconsideration,
filed on February 15, 2017. Defendant seeks reconsideration of an Order entered
on January 9, 2017 by the district judge who previously presided over the instant
matter. Specifically, Judge Gerald Rosen entered an Order granting the Plaintiffs’
Motion for Amended Judgment and awarded Plaintiffs the total sum of $65,078.52,
consisting of delinquent fringe benefit contributions of $59,171.55, $5,574.28 in
liquidated damages resulting from Plaintiffs’ third party vendor audit, and $332.69
in liquidated damages resulting from late payments, plus interest, costs and

attorney fees pursuant to 29 U.S.C. § 1132(g)(2). Defendant claims that the audit
report, upon which Judge Rosen’s January 9, 2017 Order relies, is inaccurate in
several respects.
This matter was reassigned to the undersigned on February 1, 2017. On
February 9, 2017, this Court entered an order requiring additional briefing on
Defendant’s Motion for Reconsideration. Accordingly, on February 15, 2017,
Plaintiffs filed their Response to Defendant’s Motion for Reconsideration.
Defendant filed a Reply in support of its Motion for Reconsideration on February
22, 2017. Upon review and consideration of the parties’ submissions, the Court
will deny Defendant’s Motion for Reconsideration.
II. Background
The Plaintiffs are the Trustees of the Detroit Laborers’ Fringe Benefit Funds.
They filed the instant action seeking to compel an audit and recover unpaid fringe
benefit contributions owed to the funds for work performed by its laborer
employees pursuant to collective bargaining agreements. A subsequent audit by
Kem Whatley revealed that Defendant’s indebtedness to the funds for the
applicable period was $65,078.52, consisting of $59,171.55 in contributions,
$5,574.28 in liquidated damages resulting from the audit, and $332.69 in liquidated
damages resulting from late payments. When Defendant did not pay the funds in
accordance with the audit results, Plaintiffs filed a Motion for Amended Judgment.
2 

Defendant responded to the Plaintiffs’ Motion for Amended Judgment and argued
that Mr. Whatley’s audit was inaccurate. However, Defendant failed to provide
any evidence in support of its contention that the audit contained errors.
On January 9, 2017, Judge Rosen issued his Order Granting the Plaintiffs’
Motion for Amended Judgment. In rejecting the Defendant’s argument that the
audit was inaccurate, Judge Rosen stated that “[u]nsupported claims of inaccuracy
are insufficient to rebut the validity of the audit. . . . Since Defendant here has
provided no documentary evidence of any kind to establish that the auditor’s
conclusion is incorrect, it has failed to meet its burden of rebutting the validity of
the audit. Therefore, pursuant to the terms of the Consent Judgment entered in this
case on April 3, 2015, the Court will enter an Amended Judgment in accordance
with the audit results.” See Dkt. No. 15 at 4-5.
III.

Law & Analysis

Local Rule 7.1(h)(3) of the Local Rules of the United States District Court
for the Eastern District of Michigan provides:
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 that is obvious, clear,
3 

unmistakable, manifest, or plain.’” United States v. Lockett, 328 F. Supp. 2d 682,
684 (E.D. Mich. 2004) (citing United States v. Cican, 156 F. Supp. 2d 661, 668
(E.D. Mich. 2001)). “[A] motion for reconsideration is not properly used as a
vehicle to re-hash old arguments or to advance positions that could have been
argued earlier but were not.” Smith ex rel. Smith v. Mount Pleasant Pub. Sch., 298
F. Supp. 2d 636, 637 (E.D. Mich. 2003) (citing Sault Ste. Marie Tribe of Chippewa
Indians v. Engler, 146 F.3d 367, 374 (6th Cir.1998)).
Here, Defendant has failed to establish a palpable defect by which the Court
and the parties have been misled. Defendant’s present motion merely re-raises
arguments that have already been reviewed and rejected by this Court. Defendant
reasserts that Mr. Whatley’s audit was inaccurate. In support, Defendant provides
the affidavit of Defendant’s owner, Philip Simon. However, it is inappropriate for
the Court to consider an affidavit that should have been filed in support of
Defendant’s response in opposition to the Plaintiffs’ Motion for Amended
Judgment.
Moreover, even if Mr. Simon’s affidavit was properly before the Court, it
would not change the result. Mr. Simon’s affidavit fails to address the fact that
contributions for the months of January through September of 2012 have not been
paid to the funds.

Nor has Defendant submitted any documentary evidence

establishing that these contributions have been paid. Additionally, Defendant is
4 

incorrect in claiming that the Laborers Specialized Services Agreement governs
the contribution payments owed to the funds. The Laborers Specialized Services
Agreement expired on April 1, 2010, which was before the period covering the
audit.

The governing agreement-the Specialized Coatings Agreement-became

effective November 1, 2011. Thus, the Specialized Coatings Agreement was
properly relied upon by Mr. Whatley in calculating the amounts owed to the funds
beginning in January of 2012.
IV. Conclusion
Accordingly, Defendant’s Motion for Reconsideration [#16] is DENIED.
SO ORDERED.
Dated: April 4, 2017

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 4, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk 

5