BOOTH v. TIMOTHY SAMMONS, INC. et al

Filing 22

OPINION AND ORDER denying 20 PLaintiff's Motion for Reconsideration. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RALPH H. BOOTH, II,
Plaintiff,
Case No. 15-11760

v.
TIMOTHY SAMMONS, INC., et al.,
Defendants.
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OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
On October 30, 2015, Plaintiff Ralph H. Booth, II requested the clerk of court to
enter a default judgment against Defendants. (Dkt. # 18.) Four days later, the clerk of
court denied Plaintiff’s request because Plaintiff “[c]annot request Attorney Fees.” (Dkt.
# 19.) Now before the court is Plaintiff’s Motion for Reconsideration pursuant to Eastern
District of Michigan Local Rule 7.1(h) and the Federal Rules of Civil Procedure. (Dkt. #
42.) For the reasons stated below, Plaintiff’s Motion will be denied.
I. STANDARD
Subject to the court’s discretion, a motion for reconsideration shall be granted
only if the movant “demonstrate[s] a palpable defect by which the court and the parties
. . . have been misled” and “show[s] 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, unmistakable, manifest or plain.’” Buchanan v. Metz, 6 F. Supp. 3d
730, 752 (E.D. Mich. 2014) (quoting United States v. Lockett, 328 F. Supp. 2d 682, 684

(E.D. Mich. 2004). The court “will not grant motions for . . . reconsideration that merely
present the same issues ruled upon by the court.” E.D. Mich. L.R. 7.1(h)(3).
II. DISCUSSION
Federal Rule of Civil Procedure 55 distinguishes between default judgments
entered by the clerk of court and those entered by the court. The clerk of court is
authorized to enter a default judgment only “[i]f the plaintiff’s claim is for a sum certain or
a sum that can be made certain by computation.” Fed. R. Civ. P. 55(b)(1). “In all other
cases, the party must apply to the court for a default judgment.” Id. at 55(b)(2). Federal
courts have made clear that attorney fees are not a “sum certain.” See, e.g., Flynn v.
Mastro Masonry Contractors, 237 F. Supp. 2d. 66, 70 (D.D.C. 2002) (“The amount of
attorney’s fees, however, is not considered a sum certain as the reasonableness of the
fees requested by the [plaintiff] is a ‘judgment call’ which only the [c]ourt can make.”)
(quoting Combs v. Coal & Mineral Mgmt. Servs., Inc., 105, F.R.D. 472, 475 (1984));
Stolicker v. Muller, Muller, Richmond, Harms, Myers, and Sgroi, P.C., No. 04-733, 2005
WL 2180481 (W.D. Mich. Sept. 9, 2005). This is true even when, as here, the Plaintiff
has requested a specific amount of attorney fees. Chemtail, Inc. V. Citi-Chem, Inc., 992
F. Supp. 1390 (S.D. Ga. 1998) (“However, a plaintiff ‘cannot satisfy the amount simply
by requesting a specific amount. He must also establish that the amount is reasonable
under the circumstances.”) (quoting 10 Fed. Prac. & Proc. Civil 2d §§ 2688, 2684.)

Plaintiff’s entire Motion for Reconsideration is based on a faulty understanding of
the clerk of court’s decision. He claims that “[t]he Court determined Plaintiff was not
entitled to attorney fees,” and that it therefore “palpably erred by denying Plaintiff’s
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Motion for Clerk’s Entry of Default Judgment . . . because attorney fees are an element
of Plaintiff’s damages pursuant to Section 4 of the Parties’ agreement and Fed. R. Civ.
P. 54(D)(2)(A).” (Dkt. # 20, Pg. ID 143 (emphasis omitted).) But the court did nothing of
the sort. Plaintiff requested that the clerk of court enter a judgment of default—including
attorney fees—against all Defendants. This request the clerk was procedurally barred
from granting. As such, no palpable defect exists in the decision, and the court will
deny Plaintiff’s Motion.
III. CONCLUSION
IT IS ORDERED that Plaintiff’s Motion for Reconsideration (Dkt. # 20) is
DENIED. Nothing in this order should be construed as preventing Plaintiff from seeking
the entry of a default judgment against Defendants from the court pursuant to Federal
Rule of Civil Procedure 55(b)(2).
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: May 12, 2016

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, May 12, 2016, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C1 ORDERS\15-11760 BOOTH.Deny.Motion.Reconsider.RHC.wpd

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