Bui v. Milton Manufacturing, Inc.
OPINION AND ORDER denying 30 Motion for Reconsideration. Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
Case No. 18-13520
MILTON MANUFACTURING, INC.,
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
On March 23, 2021, the court issued an opinion and order granting, in part,
Defendant’s “Motion for Summary Judgment.” (ECF No. 23.) While the court declined to
exercise supplemental jurisdiction over a single state law claim, it granted summary
judgment for Defendant on all other claims. (See id.) Plaintiff, Phat Bui, now proceeding
pro se, brings a “motion to disallow” the court’s opinion. (ECF No. 30.) The motion
appears to actually be a motion for reconsideration, and the court will construe it as
such. (See id.) Plaintiff argues that summary judgment should be denied, because the
court misconstrued the evidence in reaching its decision. The court does not hold
hearings on motions for reconsideration. See E.D. Mich. LR 7.1(h)(2). The motion will
For the reasons discussed below, the court finds that it lacks jurisdiction to
consider the motion for reconsideration. Even if the court could consider the motion,
Plaintiff has failed to meet the standard necessary to prevail on a motion for
A. Lack of Jurisdiction
The court lacks jurisdiction to decide Plaintiff’s present motion because a notice
of appeal has already been filed. (See ECF No. 26.) A notice of appeal “confers
jurisdiction on the court of appeals and divests the district court of control over those
aspects . . . involved in the appeal.” Finley v. McCullick, No. 2:17-CV-11976-TGB, 2021
WL 1923440, at *1 (E.D. Mich. May 13, 2021) (Berg, J.) (quoting Marrese v. Am. Acad.
of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985)).
Once a notice of appeal has been filed, the district court cannot amend a
previous opinion upon a motion for reconsideration. Under Sixth Circuit precedent, a
petitioner deprives the district court of jurisdiction by filing a notice of appeal before the
court has a chance to decide a motion for reconsideration. See Finley, 2021 WL
1923440, at *1-2; Workman v. Tate, 958 F.2d 164, 167 (6th Cir. 1992). Similarly, if a
motion for reconsideration is filed after the notice of appeal, it will also be denied for lack
of jurisdiction. See Aldridge v. City of Warren, No. 15-CV-12366, 2016 WL 9224894, at
*2 (E.D. Mich. June 9, 2016) (Levy, J.).
Plaintiff has already filed a notice of appeal; therefore, his subsequent motion for
reconsideration must be denied. Like Marrese, Workman, and Albridge, jurisdiction over
the present motion for reconsideration was divested the moment the notice of appeal
was filed and the motion must be denied.
B. Failure to Meet the Motion for Reconsideration Standard
Even assuming arguendo that the court could reach the merits of the motion,
Plaintiff cannot prevail under the local rule governing a motion for reconsideration. To
prevail, Plaintiff “must not only demonstrate a palpable defect . . . but also show that
correcting the defect will result in a different disposition of the case.” E.D. Mich. LR
7.1(h)(3); see also Indah v. U.S. Sec. & Exch. Comm’n, 661 F.3d 914, 924 (6th Cir.
2011) (explaining that this standard requires movant demonstrate both the “palpable
defect” and “different disposition” elements). “A ‘palpable defect’ is a defect which is
obvious, clear, unmistakable, manifest, or plain.” Hawkins v. Genesys Health Sys., 704
F. Supp. 2d 688, 709 (E.D. Mich. 2010) (Borman, J.) (quoting Ososki v. St. Paul Surplus
Lines Ins. Co., 162 F. Supp. 2d 714, 718 (E.D. Mich. 2001) (Lawson, J.)).
Plaintiff argues that the court misconstrued the words of his direct supervisor,
Hayes, as being in response to Plaintiff’s public insubordination. (See ECF No. 30-1,
PageID.776.) Plaintiff contends Hayes must have been motived by Plaintiff’s race when
he yelled at Plaintiff in front of coworkers during a morning team meeting. (Id.)
Specifically, Plaintiff argues that the record shows that he did not actually engage in
such insubordination, because Plaintiff ultimately completed the training assignment as
required. However, this point does not rebut the court’s conclusion that a reasonable
jury could find only that Hayes’s words were a response to Plaintiff’s public
insubordination made prior to the training being completed. (See ECF No. 23,
PageID.738.) Further, even if the court assumes Plaintiff is correct that the court’s
conclusion represents a defect, it cannot change the disposition of the case. The court’s
opinion already explained that this single incident of harassment would be insufficiently
“pervasive” to meet the “high bar” of Title VII. (Id., PageID.741.) Accordingly, Plaintiff
fails to meet the applicable standard under Local Rule 7.1(h)(3).
The court lacks jurisdiction to decide this motion for reconsideration. Moreover,
Plaintiff failed to demonstrate either a palpable defect in the court’s decision, or that
such a defect would have changed the disposition of the case. Accordingly,
IT IS ORDERED that Plaintiff’s motion for reconsideration (ECF No. 30) is
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: June 7, 2021
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, June 7, 2021, by electronic and/or ordinary mail.
Case Manager and Deputy Clerk
S:\Cleland\Cleland\AAB\Opinions and Orders\Civil\18-13520.BUI.MotionForReconsideration.SM.AAB.docx
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