Smith v. Inkster, City of et al

Filing 153

ORDER DENYING PLAINTIFFS MOTION FOR RECONSIDERATION AND/OR FOR RELIEF FROM JUDGMENT [#152]. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KEVIN SMITH,
Plaintiff,
Case No. 12-cv-15440
HON. GERSHWIN A. DRAIN

vs.

CITY OF INKSTER, et al.,
Defendants.
_____________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
AND/OR FOR RELIEF FROM JUDGMENT [#152]
I.

INTRODUCTION
Presently before the Court is Plaintiff’s Motion for Reconsideration and/or for

Relief from Judgment, filed on April 13, 2015. Plaintiff seeks reconsideration of this
Court’s March 30, 2015 Order, which granted summary judgment in favor of the
Defendants in this matter. Upon review of the Plaintiff’s present motion, the Court
finds that he has failed to demonstrate a palpable defect by which this Court has been
misled, the correction of which will result in a different disposition of this case. Nor
has Plaintiff shown he is entitled to relief from judgment pursuant to Fed. R. Civ. P.

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60(b)(6), which requires a showing of extraordinary circumstances. Because Plaintiff
has not established he is entitled to the relief he seeks, the Court will deny his present
motion.
II.

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,
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)).
Plaintiff’s present motion fails to establish a palpable defect in this Court’s
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March 30, 2015 Order. Plaintiff mostly re-raises arguments already considered and
rejected by this Court. Plaintiff’s entitlement to a duty disability pension should have
been raised in the two previous actions that stemmed from the notice of Plaintiff’s
reassignment from the detective bureau to road patrol. Summary judgment in favor
of Defendants on res judicata and/or collateral estoppel grounds was therefore
appropriate.
Moreover, contrary to Plaintiff’s contention, the Defendants did raise the
affirmative defenses of res judicata and collateral estoppel in their Amended
Affirmative Defenses. See Dkt. No. 55. A “defendant does not waive an affirmative
defense if he raised the issue at a pragmatically sufficient time, and the plaintiff was
not prejudiced in its ability to respond.” Moore, Owen, Thomas & Co. v. Coffey, 992
F.2d 1439, 1445 (6th Cir. 1993); Trinity Carton Co. v. Falstaff Brewing Corp., 767
F.2d 184, 194 (5th Cir. 1985) (“[T]he requirement that affirmative defenses be
pleaded or waived must be applied in the context of the Federal Rules’ liberal
pleading and amendment policy, the goal of which is to do substantial justice.”).
The remainder of Plaintiff’s assertions include arguments that Defendants failed
to direct the Court’s attention to certain facts. For instance, Plaintiff complains that
Defendants failed to inform the Court that Plaintiff made a demand to return to work,
but Defendant refused to allow him to return to work. This is not a proper argument
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at this stage of the proceedings. There is no allegation concerning Plaintiff’s request
to return to work in his Complaint. Moreover, even if he had included this in his
Complaint, Plaintiff did not address it in his Responses to the Defendants’ Motions
for Summary Judgment. Motions for reconsideration are not properly used as a
vehicle 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).
Plaintiff also moves for relief from judgment pursuant to Rule 60(b) of the
Federal Rules of Civil Procedure, which states:
(b) Grounds for Relief from Final Judgment, Order, or Proceeding.
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence, that with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based
on an earlier judgment that has been reversed or vacated; or applying
it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). The party that seeks to invoke Rule 60(b) bears the burden of
establishing that its prerequisites are satisfied. Jinks v. Alliedsignal, Inc., 250 F.3d
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381, 385 (6th Cir. 2001).
Plaintiff specifically relies on Rule 60(b)(6), which may be used to relieve a
party from judgment only in extraordinary circumstances which are not addressed by
the first five subsections of Rule 60(b). Ford Motor Co. v. Mustangs Unlimited, Inc.,
487 F. 3d 465, 468 (6th Cir. 2007). The Sixth Circuit has stated that: “Courts . . . must
apply subsection (b)(6) only as a means to achieve substantial justice when something
more than one of the grounds contained in Rule 60(b)’s first five clauses is present.
The something more . . . must include unusual and extreme situations where principles
of equity mandate relief.” Id. (internal citations and quotations omitted).
Plaintiff’s arguments do not demonstrate that an unusual or extreme situation
exists that warrants relief from judgment. Plaintiff merely raises previous arguments
already reviewed and rejected by this court or asserts entirely new arguments that
should have been raised in his Responses opposing summary judgment in favor of
Defendants.
III.

CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Reconsideration and/or for

Relief From Judgment [#152] is DENIED.
SO ORDERED.
Dated: April 20, 2015

/s/Gershwin A Drain
GERSHWIN A. DRAIN
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UNITED STATES DISTRICT JUDGE

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