Hertel, et al. v. Mortgage Electronic Registration Systems, Inc., et al.

Filing 129

OPINION; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, sdb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CURTIS HERTEL and NANCY
HUTCHINS,
Plaintiffs,
File No. 1:12-CV-174
v.
HON. ROBERT HOLMES BELL
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC,
et al.,
Defendants.
/
OPINION
On March 25, 2013, this Court granted attorney fees in the amount of $8,978.75 in
favor of Defendant Marshall Isaacs and against Plaintiffs’ attorneys Daniel Marsh and
William Maxwell. (Dkt. Nos. 116, 117.) Presently before the Court is Plaintiffs’ motion for
reconsideration (Dkt. No. 127), which will be denied.
I.
On February 26, 2013, following a hearing, this Court granted Defendant Marshall
Isaacs’ motion for sanctions against Plaintiffs’ attorneys, William Maxwell and Daniel
Marsh, pursuant to Federal Rule of Civil Procedure 11, and deemed attorney fees an
appropriate sanction. (Dkt. Nos. 102-03.) In response to the order granting sanctions, Isaacs
filed a motion for attorney fees on February 28, which this Court granted on March 25. (Dkt.
Nos. 116, 117.) While the Court accepted the hourly rates billed by Defendant’s counsel, the

Court reduced the hours billed by 75% on account of the time related to other litigation
included in the billing sheets and the fact that Isaacs and his attorney played a peripheral role
in the present suit.
II.
The Western District of Michigan’s Local Civil Rules provide that a party that moves
for reconsideration must demonstrate that there is a palpable and misleading defect as well
as that a different result is required as a result of a correction of that defect. W.D. Mich.
LCivR 7.4(a). As a general rule, “motions for reconsideration which merely present the same
issues ruled upon by the Court shall not be granted.” Id.
Although there is no specific provision for a motion for reconsideration in the Federal
Rules of Civil Procedure, such a motion is to be evaluated as a motion to alter or amend the
judgment under Federal Rule of Civil Procedure 59(e). See Aero-Motive Co. v. William
Becker, No. 1:99-CV-384, 2001 WL 1699194, at *1 (W.D. Mich. Dec. 6, 2001) (citing Huff
v. Metro. Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982)). A motion for reconsideration is
an opportunity to “point out manifest error of law or present newly discovered evidence.”
Aero-motive, 2001 WL 1699194 at *1 (citing Sault Ste. Marie Tribe of Chippewa Indians v.
Engler, 146 F.3d 367, 374 (6th Cir. 1998)).
III.
Plaintiffs present numerous objections and justifications for reconsideration, all of
which alleged “flagrant” violation of this Court’s orders and violations of various local court

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rules by Isaacs.
A. Plaintiffs’ Alleged Non-Receipt of the Motion for Fees
First, Plaintiffs argue that this Court’s opinion erroneously “presumes at page 2 that
Attorney Maxwell received some detailed summary of Defendant Isaacs Requests for
attorney fees.” (Dkt. No. 128, at 2.) This argument is frivolous and has already been
addressed by the Court. The Court did not make a baseless presumption. While the motion
for fees was filed under seal, Isaacs presented evidence that Attorney Maxwell received a
detailed summary of Isaacs’ request for attorney fees on the same day the motion was filed.
Isaacs attached a certificate of service to his reply brief in response to this same argument by
Plaintiffs:
The undersigned certifies that Defendant Isaacs’ Brief in Support of Motion
for Attorney Fees and Exhibits along with a Certificate of Service was served
upon William Maxwell, Attorney for Plaintiffs on February 28, 2013, via email
at [e-mail].
(Dkt. No. 110, Ex. A.) Isaacs also provided a receipt indicating that Maxwell did indeed
receive the emailed documents. (Dkt. No. 110, Ex. B.) Notably, Plaintiffs neglected to
mention this fact in filing their response to the supplemental sealed motion. (See Dkt. No.
109.) Instead, Plaintiffs attempted to mislead the Court in that response, stating that “[i]t is
impossible for Plaintiffs’ attorneys to comply with the Court’s order to file an objection or
discuss the reasonableness of the fees” because “Plaintiffs have not been able to review
Defendant’s request for attorney’s fees.” (Id. at PageID# 1905.) Moreover, once Isaacs
presented evidence that Maxwell had in fact received a copy of the brief, Plaintiffs took no
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further action; Plaintiffs neither sought leave to file a sur-reply disputing Isaacs’ evidence
nor contradicted Isaacs’ evidence with an affidavit or otherwise. Incredibly, Plaintiffs’
attorneys continue to fail to address the certificate of service and delivery receipt in the
present motion for reconsideration.1 This Court has previously found Plaintiffs’ attorneys
unreliable and non-credible.2 Because of Plaintiffs’ attorneys’ continued attempts to mislead
the Court, their failure to address the certificate of service, and the lack of any supporting
evidence for their continued assertions that they were unable to object to the fees requested,
the Court also finds Plaintiffs’ attorneys unreliable and non-credible in regard to Isaacs’
supplemental sealed motion for attorney fees.
B. Isaacs’ Alleged “Flagrant” Violation of this Court’s Orders
Plaintiffs’ attempt to argue that “technically” Isaacs violated this Court’s previous,
February 26 order (Dkt. No. 103) by filing the motion under seal is similarly frivolous.
Plaintiffs take issue with the fact that the Court contacted Isaacs’ counsel and instructed him
to re-file an unsealed motion or provide copies of the motion to Plaintiffs’ counsel. Because

1

Plaintiffs’ sole mention of this evidence is the frivolous argument that the brief to which
these documents were attached was not allowed under Court rules.
2

Maxwell appeared before this Court and lied about this case being filed by the “Home
Defense League,” despite filing briefing under that name three days prior. (Dkt. No. 102,
PageID# 1780.) In fact, Plaintiffs’ attorneys continue to file documents with this Court
contradicting Maxwell’s vigorous assertions that this case was not brought by the Home Defense
League. (See Dkt. No. 125, Ex. 1, “Resolution Authorizing Register of Deeds to Enter into a
Contract for Legal Services with the Home Defense League.”) Additionally, Maxwell lied about
being a special prosecutor and raised wild, unsupported accusations against Isaacs. (Dkt. No.
102, PageID# 1780.)
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the Court did not also contact Plaintiffs’ counsel, Plaintiffs argue that they were under the
proper assumption that the February 26 order had been “flagrantly” violated. First, this Court
does not have a duty to contact Plaintiffs’ counsel just because it contacted a defendant’s
counsel about ensuring that Plaintiffs’ counsel was provided with copies of a filed motion.
Second, this Court determines when its orders have been violated, not Plaintiffs. Plaintiffs
were free to raise the argument in their response that the February 26 order had been violated,
which they did. However, Plaintiffs were also free to simultaneously present objections to
the amount of fees sought. Instead, Plaintiffs chose to mislead the Court about never
receiving a copy of the motion. Thus, Plaintiffs had the opportunity to present objections to
the amount of fees requested and failed to do so. Moreover, even after evidence was
presented that Plaintiffs received a copy of the motion the day it was filed, Plaintiffs still
failed to explain why they could not file objections in the time frame required by the Court.
Next, Plaintiffs argue that Isaacs’ reply brief – in which he presented the evidence of
timely service – was “another flagrant violation of the same order” because it was a “surreply,” which is not allowed under the court rules without leave of the Court. This argument
is frivolous. First, the document is a reply brief not a sur-reply. Second, the Court has the
discretion to consider reply briefs regarding nondispositive motions. It is not a palpable and
misleading error for the Court to exercise its discretion to consider a reply brief.
C. Alleged Court Prejudice and/or Lying
Next, Plaintiffs question whether the Court “truly” spoke with Isaacs’ counsel on

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February 28. (Dkt. No. 128, at PageID # 2063.) Plaintiffs continue: “Plaintiffs seriously
doubt that court staff would instruct counsel for Defendant Isaacs to violate the local rules
for electronic filing without filing some type of proof of service to show compliance with the
instructions which were not included in the Court’s Order.” (Id.) It is unbecoming of the
legal profession for Plaintiffs’ attorneys to accuse the Court of lying about communication
with a defendant’s counsel. Furthermore, it is presumptuous for Plaintiffs’ counsel to
speculate about what instructions this Court gave during such communication. The Court
instructed Isaacs’ counsel to provide a copy of the motion to Plaintiffs’ counsel and expressly
provided that the copy could be attached to an email. The Court also instructed Isaacs’
counsel to provide the Court with proof of such service. While it may have been ideal for
Isaacs’ counsel to file such proof of service on the day of service, the Court has accepted the
proof of service attached to Isaacs’ reply brief as sufficient, and Plaintiffs have completely
failed to show that they were prejudiced in any way by this service via email.
D. Miscellaneous Frivolous Arguments
Plaintiffs also note that the Court never ruled on their “motion to strike.” The Court
never expressly ruled on the motion because it was made in a response brief, but the Court
impliedly ruled on it by issuing an order granting fees under the motion Plaintiffs sought to
strike. (See Dkt. No. 117.) Nevertheless, the Court will expressly deny the motion at this
time for the reasons stated in the March 25, 2013, opinion.
Plaintiffs also argue that they have continuously filed objections to Isaacs’ request for

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attorney fees. First, they point to a request for an evidentiary hearing filed on February 19,
2013. (Dkt. No. 96.) However, Plaintiffs ignore the fact that this request was filed before
the Court granted leave on February 26 for Isaacs to file a request for attorney fees and was
denied before Isaacs filed this request on February 28. Moreover, the Court notes that this
document did not present any argument about attorneys fees, only stating that an evidentiary
hearing would be helpful for numerous issues related to the Rule 11 motion for sanctions:
Plaintiffs hereby respectfully requests that the Court schedule an evidentiary
hearing for the determination in this case on the failure to meet the
requirements of the Court’s order, clarify factual and legal misstatements made
in support of their motion, and on the disputed issue(s) of entitlement and/or
the amount of the attorney’s fees and costs, and the reasonableness of such
costs and fees, to which the moving party claims it is entitled.3
(Dkt. No. 96, at 1-2.) Next, Plaintiffs argue that they did file objections on March 7, 2013,
and that this “contradicts the Court’s finding that no objections were filed.” (Dkt. No. 128,
at PageID# 2065.) As stated multiple times, Plaintiffs’ “Objection to Isaacs Request for
Attorney Fees” did not raise any actual objections to the fees sought. (See Dkt. No. 109.)
Instead, it objected to Isaacs’ alleged noncompliance with this Court’s February 26 order.4
Last, Plaintiffs request an evidentiary hearing “to clear the factual disputes.” (Dkt.
No. 128, at PageID# 2065.) Plaintiffs have failed to introduce any evidence, despite

3

Moreover, this request ignored the fact that a hearing regarding the Rule 11 motion was
scheduled for, and held on, the next day, February 20. (Dkt. No. 99.)
4

Plaintiffs’ argument that Isaacs filing an unsealed motion was a “condition precedent” to
them having to file objections is the same tired argument discussed ad nauseum in this opinion
and in the opinion granting the request for attorney fees.
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numerous opportunities to do so, showing that such alleged factual disputes actually exist.
Moreover, the Court disagrees with Plaintiffs’ argument that without discovery they are
unable to provide the Court with “intelligent and reasoned factually based objection to the
attorney fees claimed.” (Dkt. No. 128, at PageID# 2066.) Thus, the request for an
evidentiary hearing will be denied.
IV.
Plaintiffs’ attorneys continue to inundate this Court with frivolous arguments of
special favors to Isaacs, unfairness to Plaintiffs, and prejudice by the Court. Despite not
receiving any specific objections, the Court closely examined the fees requested, and,
pursuant to law, decreased the fees by 75% for the inclusion of unrelated time. Plaintiffs’
attorneys have failed to show that there was a palpable and misleading defect in the Court’s
actions, or that a different result is required as a result of a correction of such a defect. See
W.D. Mich. LCivR 7.4(a). Thus, the motion will be denied.
An order consistent with this opinion will be entered.

Date: April 29, 2013

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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