Tyson v. John R Service Center Inc. et al
ORDER Denying Defendants' 117 Motion for Reconsideration. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 13-cv-13490
Judith E. Levy
United States District Judge
Sterling Rental, Inc., et al.,
Mag. Judge Mona K. Majzoub
ORDER DENYING DEFENDANTS’ MOTION FOR
On August 7, 2017, plaintiff SeTara Tyson filed three motions in
limine regarding various evidence she sought to have excluded at trial.
(Dkts. 113-115.) Defendants’ responses to those motions were due on
August 21, 2017. They did not file responses. On August 24, 2017, the
Court granted each of the motions in limine. (Dkt. 116.)
On August 28, 2017, defendants filed a motion for reconsideration
regarding the granting of the motion in limine to exclude evidence,
argument, or opinion relating to its offers to return the vehicle they are
accused of converting.
The Court’s order excluded as
evidence any offers defendants made to return an allegedly converted
vehicle after the alleged conversion on August 12, 2017.
To prevail on a motion for reconsideration under Local Rule 7.1, a
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. LR 7.1(h)(3). “A
palpable defect is a defect that is obvious, clear, unmistakable, manifest
or plain.” Witzke v. Hiller, 972 F. Supp. 426, 427 (E.D. Mich. 1997).
The “palpable defect” standard is consistent with the standard for
amending or altering a judgment under Fed. R. Civ. P. 59(e).
Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 496 (6th Cir.
Motions for reconsideration should not be granted if they
“merely present the same issues ruled upon by the court, either
expressly or by reasonable implication.” E.D. Mich. LR 7.1(h)(3). But
“parties cannot use a motion for reconsideration to raise new legal
arguments that could have been raised before a judgment was issued.”
Roger Miller Music, Inc. v. Sony/ATV Publ’g, 477 F.3d 383, 395 (6th
“Where a motion for reconsideration simply repeats the movant's
earlier arguments, without showing that something material was
overlooked or disregarded, presenting previously unavailable evidence
or argument, or pointing to substantial error of fact or law, such motion
is frivolous.” Miller v. Norfolk S. Rwy. Co., 208 F. Supp. 2d 851, 854
(N.D. Ohio 2002).
Frivolous motions for reconsideration are
sanctionable under Rule 11. Id. at 852-53.
This is the second improper motion for reconsideration that
defendants have filed in this case. (See Dkt. 77 (seeking reconsideration
of an order setting a supplemental briefing page limit of five pages).)
Here, defendants argue that they “present facts, law and argument not
previously provided to the Court because Defendants’ Attorney
inadvertently calendared the filing date as one for ma [sic] response to a
dispositive motion (21 days) rather than the applicable response for a
non-dispositive motion (14 days).” (Dkt. 117 at 6-7.)
This litigation has been pending for over four years, including
multiple appeals to the United States Court of Appeals for the Sixth
Circuit. The dates for the motions in limine to be filed were set on April
10, 2017, nearly four months before the motions were due. (Text-Only
Order, 4/10/2017.) The Local Rule setting forth the briefing schedule for
all motions, dispositive and non-dispositive, is clear and unambiguous
in establishing that a motion in limine is not a dispositive motion. E.D.
Mich. Local R. 7.1(e)(2)(A).
The Court’s ruling is also not dispositive on the remaining issue in
this case: whether defendants statutorily converted plaintiffs’ car. The
offers excluded by the Court are “not admissible even in mitigation of
damages” unless “the conversion is technical, inadvertent, or the result
of the mistake, and the property is still in status quo,” in which case “an
offer to return it may be shown in mitigation of damages.” Crowley v.
Detroit Garages, 259 Mich. 170, 174-75 (1932). The exclusion of the
evidence is not dispositive as to plaintiff’s claims, because it cannot be
admitted to prove or disprove liability.
As to the substance of their motion, defendants argue that their
offers to return the allegedly converted vehicle, beginning eight days
after the alleged conversion occurred and six days after suit was filed,
should be admitted to show mitigation of damages because the
conversion was technical, inadvertent, or the result of a mistake if it
occurred. (Dkt. 117 at 7 (citing Crowley v. Detroit Garages, 279 Mich.
170, 174 (1932).)
Defendants then argue their theory of the case: that on August 12,
2013, plaintiff “was free to leave with the car under the threat of being
sued at some unspecified time in the future for fraud,” thereby making
them not liable for statutory conversion of her car. (Dkt. 117 at 7.) The
Court has thoroughly analyzed the available evidence and determined
that a genuine issue of material fact exists as to whether defendants
committed statutory conversion as to plaintiff’s car on August 12, 2013.
(Dkt. 112.) Defendants cite the Court’s opinion regarding that question
of material fact to justify the use of evidence, argument, or opinion
relating to an offer to return the car eight days later, even though the
opinion (and the central issue in this case) are not affected by that
The offers to return the car do not make any fact of the
alleged conversion more or less likely, and are not admissible to do so.
Defendants have never argued that the alleged conversion could
be considered technical, inadvertent, or the result of a mistake, and
offer no reason to believe that could be the case here. The competing
allegations in this case are well established, and defendants present no
possible array of those facts that could lead a jury to determine that
plaintiff’s car was only technically, inadvertently, or mistakenly
converted. Under Michigan law, plaintiff was under no obligation to
take the car back once it had been converted.
Trail Clinic, P.C. v.
Bloch, 114 Mich. App. 700, 706 (1982) (citing Gum v. Fitzgerald, 80
Mich. App. 234 (1978)); Crowley, 259 Mich. at 174 (citing Carpenter v.
Am. Building & Loan Assoc., 54 Minn. 403 (1893)). Defendants offer no
argument that even if the conversation were technical, inadvertent, or
mistaken, the offer would demonstrate that plaintiff failed to mitigate
Defendants also argue that the offer to return the car may be used
to impugn plaintiff’s credibility.
However, they cite a portion of
plaintiff’s deposition transcript, in which she mentioned a conversation
with her attorney regarding what she did when she received the offer to
return the car. (Dkt. 117 at 8 (citing Dkt. 41-7 at 11).) Defendants offer
no substantive reason the offer to return the car would constitute
admissible evidence regarding plaintiff’s credibility as to her allegations
of statutory conversion, other than that the issue of the offer arose in
Defendants’ motion for reconsideration (Dkt. 117) is DENIED for
multiple reasons. First, a party’s failure to timely respond to a motion
is not a palpable defect in the Court’s opinion. Second, the ruling on the
motion in limine was not dispositive, and cannot be reconsidered under
Local Rule 7.1(h)(3). Third, even if the Court did reach the substance of
defendants’ argument, they have failed to show that the evidence in
question is relevant or admissible.
Defendants are advised to consult the Local Rules before filing
any future motions for reconsideration.
IT IS SO ORDERED.
Dated: September 6, 2017
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on September 6, 2017.
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