Ronnie Johnson, et al v. Fintec Crushing & Screening, Ltd. et al
ORDER Denying Plaintiffs' 28 Motion for Reconsideration. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Ronnie Johnson and Tuesday
Case No. 17-cv-10117
Judith E. Levy
United States District Judge
Mag. Judge Stephanie Dawkins
ORDER DENYING PLAINTIFFS’ MOTION FOR
On August 1, 2017, the Court issued an opinion and order
Construction USA, LLC, and Sandvik Mining and Construction’s
motions to dismiss for lack of personal jurisdiction. (Dkt. 21.) Sandvik
Mining and Construction does not exist, and plaintiffs failed to meet
their burden to show that personal jurisdiction existed over the other
Plaintiffs have now filed a motion for reconsideration of that
order. (Dkt. 28.) The motion makes two primary arguments: first, that
plaintiffs require discovery and would have asked for it at oral
argument, had the Court held oral argument; and second, that
additional evidence demonstrates that personal jurisdiction exists over
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.
Plaintiffs’ first argument, that they would have asked for
additional discovery had the Court held oral argument, is not a ground
for the Court to reconsider its ruling.
Plaintiffs state that “the Court
made its finding and conclusions in this matter without either
Defendant filing an Answer to the Complaint, and without allowing
Plaintiff any discovery.”
(Dkt. 28 at 3.)
Plaintiffs also attach the
affidavit of their counsel, Fred Custer, stating that he would have asked
for discovery regarding personal jurisdiction at the oral argument
scheduled on August 2, 2017, which the Court canceled. (Dkt. 28-1.)
It must first be noted that the motion for reconsideration was filed
by an attorney named Michael T. Materna, who has not filed an
appearance in this case, and appears on none of plaintiffs’ other filings,
except for the ex parte motion for leave to file excess pages, filed fortyfour minutes before this motion for reconsideration. (Dkt. 27.) It is
entirely unclear why new counsel is seeking reconsideration of an order
based largely on the actions plaintiffs’ actual counsel would have taken.
Also, a motion to dismiss for lack of personal jurisdiction must be
asserted by motion before an answer is filed. Fed. R. Civ. P. 12(b)(2).
No matter what argument was presented by plaintiffs, the defendants
were required to file their motions before answering, and the Court was
required to rule on the motions before any such answer could have been
As to the substance of this argument, plaintiffs filed their
responses to the motions to dismiss on March 27, 2017. (Dkts. 15, 16.)
Those responses did not seek discovery, but instead provided a series of
documents found using Google, and argued that those, under applicable
law, established personal jurisdiction over the above-referenced
defendants. Under E.D. Mich. Local R. 7.1(f)(2), the Court may decline
to hold oral argument on any motion if it determines that such
argument is not warranted. The Court canceled oral argument on July
28, 2017, and issued its opinion on August 1, 2017. At no point between
March 27, 2017, and July 28, 2017, did plaintiffs’ counsel inform the
Court that additional discovery was needed to respond to the motions to
“Presented with a properly supported 12(b)(2) motion and
opposition, the court has three procedural alternatives: it may decide
the motion upon the affidavits alone; it may permit discovery in aid of
deciding the motion; or it may conduct an evidentiary hearing to resolve
any apparent factual questions.” Theunissen v. Matthews, 935 F.2d
1454, 1458 (6th Cir. 1991).
When the Court rules on the affidavits
alone, a plaintiff “must make only a prima facie showing that personal
jurisdiction exists in order to defeat dismissal.” Estate of Thomson ex
rel. Estate of Rakestraw v. Toyota Motor Corp. Worldwide, 545 F.3d 367,
360 (6th Cir. 2008) (quoting Theunissen, 935 F.2d at 1458). “Because
weighing any controverted facts is inappropriate at this stage, dismissal
is proper only if [the plaintiff's] alleged facts collectively fail to state a
prima facie case for jurisdiction.” Carrier Corp. v. Outokumpu Oyj, 673
F.3d 430, 449 (6th Cir. 2012).
Plaintiff’s responses to the motions to dismiss failed to allege
sufficient facts to state a prima facie case for personal jurisdiction over
the dismissed defendants. In their motion for reconsideration, plaintiffs
cite a variety of cases in which additional discovery was granted to
parties opposing motions to dismiss on the grounds of lack of personal
jurisdiction. (Dkt. 28 at 17.) None of these cases, however, stand for
the proposition that a plaintiff who has failed to state a prima facie case
for personal jurisdiction in response to a motion to dismiss is entitled to
additional discovery to establish that case. And the caselaw expressly
contemplates that a court is permitted to grant a motion to dismiss for
lack of personal jurisdiction on the briefing alone. This is particularly
true where the plaintiff does not argue that discovery is necessary, or
that discovery will lead to additional information sufficient to establish
personal jurisdiction over the defendant.
The failure of counsel to seek leave for – or even mention –
additional discovery, despite the opportunity to do so, cannot be a
palpable defect by which the Court was misled.
The purpose of a
motion for reconsideration is not to permit parties to undo strategic
That is particularly so where a defendant has filed a
procedurally proper motion to dismiss before discovery has begun, the
plaintiff may be entitled to some discovery if he or she can indicate how
and why the discovery is needed, and the plaintiff neglects to do so.
Plaintiffs’ second argument relies on a rearguing of the same legal
issues already decided, and a raft of new exhibits. The Court cannot
consider any of the new exhibits, because on their face, they are publicly
available documents and plaintiffs make no argument that these
documents were not available on March 27, 2017, when they first
responded to the motions to dismiss.
To the extent plaintiffs argue the Court made a substantive error,
it is a qualm with a single line of the opinion. Applying the Southern
Machine test set forth in S. Machine Co. v. Mohasco Indus., Inc., 401
F.2d 374, 381 (6th Cir. 1968), the Court held that the first prong of the
test, purposeful availment, was not met by Sandvik AB because it “is
not registered to do business in Michigan, and has no presence in
Michigan whatsoever.” (Dkt. 21 at 9.) Plaintiff cites a number of cases
holding that physical presence is not required for the exercise of
personal jurisdiction, and argues that the Court’s analysis was in error.
(Dkt. 28 at 12-13.)
The Court stated that Sandvik had “no presence” in Michigan, not
only that it had no physical presence in the State. Based on the motion
and the affidavit provided by Sandvik AB, and the response provided by
plaintiffs, there was no credible argument presented that Sandvik AB
had any presence – physical, business, or otherwise – in the state of
Michigan. Because plaintiffs argue the same legal issue already ruled
upon by the Court, using evidence that was apparently available to
them at the time they filed their response to the original motions to
dismiss, there was no palpable defect in the Court’s ruling, and the
motion for reconsideration must be denied.
Accordingly, it is hereby ordered that plaintiffs’ motion for
reconsideration (Dkt. 28) is DENIED.
IT IS SO ORDERED.
Dated: August 21, 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 August 21, 2017.
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