Guzall, et al v. Romulus, City of, et al
OPINION and ORDER Denying Plaintiff's 159 Motion for Reconsideration and/or Relief from the Court's August 23, 2016 Order. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MARIANNE D. GUZALL a/k/a
Civil Case No. 13-11327
Honorable Linda V. Parker
CITY OF ROMULUS, ALAN R. LAMBERT,
and BETSEY KRAMPITZ,
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION AND/OR RELIEF FROM THE COURT’S AUGUST
23, 2016 ORDER
This matter presently is before the Court on Plaintiff’s motion for
reconsideration. (ECF No. 159.) In the motion, Plaintiff asks this Court to
reconsider its August 23, 2016 decision rejecting Plaintiff’s objections to
Magistrate Judge David Grand’s May 20, 2016 discovery order with respect to a
cell phone used by Plaintiff and in Plaintiff’s possession. Because Plaintiff fails to
demonstrate a palpable defect in the Court’s evaluation of the only objection she
previously raised to Magistrate Judge Grand’s order, and because she waived the
additional arguments now raised in her motion by failing to timely raise them, the
Court is denying Plaintiff’s motion.
On May 12, 2016, Raymond Guzall III and Raymond Guzall III, P.C.
(collectively “Mr. Guzall”) filed an Emergency Motion to Intervene in this case in
order to object to the Court’s discovery order with respect to a cell phone used by
Plaintiff and in Plaintiff’s possession. Mr. Guzall claimed he owned the phone and
it contains confidential attorney work product and privileged information. This
Court referred the motion to Magistrate Judge David R. Grand. On May 20, 2016,
Magistrate Judge Grand issued an order setting forth a procedure by which the cell
phone would be examined by forensic experts chosen by the parties. (ECF No.
Plaintiff filed an objection to the order on May 27, 2016. (ECF No. 138.)
Plaintiff asserted only one objection, which was stated in paragraph 10 of her brief:
“Plaintiff objects to the Magistrate Judge’s order because that order does not
include a forensic exam of Defendant Krampitz’s phone, Leroy Burcroff’s phone,
and Julie Wojtylko’s phone, all of whom were involved in [Plaintiff’s] termination
of employment.” (Id. ¶ 10.) Plaintiff argued that “[t]he law requires that discovery
be fair” and that, “[i]n order to be fair, [the magistrate judge’s] order must apply to
all parties.” (Id. ¶ 11.)
In an opinion and order issued August 23, 2016, this Court rejected
Plaintiff’s objection. (ECF No. 155.) The Court found no error in Magistrate
Judge Grand’s decision because there was no discovery motion pending addressing
anyone else’s cell phone except the phone in Plaintiff’s possession. (Id. at Pg ID
3075.) Plaintiff now argues that this statement was factually inaccurate, as she
requested that discovery be fair during the parties’ conference with Magistrate
Judge Grand. Plaintiff asks the Court to reconsider its decision for that reason and
because several “other issues exist involving the May 20, 2016 order that are
clearly erroneous but were not addressed by the Court in its August 23, 2016
order[.]” (ECF No. 159 at Pg ID 3572.)
Standard of Review & Analysis
A party objecting to a magistrate judge’s non-dispositive decision must file
objections within fourteen days after being served with a copy of the decision.
Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1). The district judge must “make a de
novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)
(emphasis added); see also Fed. R. Civ. P. 72(b)(3) (emphasis added) (“The district
judge must determine de novo any part of the magistrate judge’s disposition that
has been properly objected to.”) “A party who fails to so object may not thereafter
assign as error a defect in the magistrate judge’s order to which objection was not
timely made.” Draper v. Adams, No. 98-1616, 2000 WL 712376, at *3 (6th Cir.
2000) (unpublished). Stated differently, “[f]ailure to file objections within the
requisite time period constitutes a waiver of any further right of appeal.” Venture
Funding, Ltd. v. United States, 190 F.R.D. 209, 212 (E.D.Mich.1999) (citing
Thomas v. Arn, 474 U.S. 140 (1985)).
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).
The arguments asserted in Plaintiff’s pending motion for reconsideration,
which were not raised in her objections to Magistrate Judge Grand’s May 20, 2016
decision, are not timely and therefore were waived. The Court did not address
those issues because Plaintiff did not previously raise them. Plaintiff’s arguments
concerning a May 24, 2016 subpoena issued by Defendant Krampitz are not
properly raised in her motion for reconsideration. The subpoena was issued after
Magistrate Judge Grand’s decision and, therefore, was not addressed in his
decision. Accordingly, this Court had no reason to address the subpoena in the
opinion and order for which Plaintiff now seeks reconsideration. As such, there is
no palpable defect in the Court’s August 23, 2016 opinion and order based on the
Court’s failure to address the issues raised for the first time in Plaintiff’s pending
There also is no palpable defect in the Court’s opinion and order based on its
statement that Magistrate Judge Grand “was not presented with a discovery motion
addressing anyone else’s cell phone except the phone in Plaintiff’s possession.”
(ECF No. 155 at Pg ID 3075.) Contrary to Plaintiff’s assertion, this statement is
factually accurate regardless of Plaintiff’s request during Magistrate Judge Grand’s
telephone conference with the parties that discovery be “fair.” No such discovery
motion had been filed.
For these reasons, the Court DENIES Plaintiff’s motion for reconsideration.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: October 17, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, October 17, 2016, by electronic and/or
U.S. First Class mail.
s/ Richard Loury
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