United States District Court, E.D. Michigan, Southern Division
ORDER DENYING Plaintiff's MOTION FOR
E. Rosen United States District Judge
matter is presently before the Court on Plaintiff's
Motion for Reconsideration of the Court's Order of
November 28, 2016 granting Defendants' Motion to Dismiss
and/or for Summary Judgment.
requirements for the granting of motions for reconsideration
are set forth in Eastern District of Michigan Local Rule
7.1(h), which, in relevant part, 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.
in order to prevail on a motion for reconsideration, the
movant must not only demonstrate a palpable defect by which
the Court has been misled, he must also show that a different
disposition of the case must result from a correction of that
defect. A “palpable defect” is “a defect
that is obvious, clear, unmistakable, manifest or
plain.” United States v. Lockette, 328
F.Supp.2d 682, 684 (E.D. Mich. 2004). Moreover, a motion that
merely presents the same issues already ruled upon by the
Court -- either expressly or by reasonable implication --
will not be granted. L.R. 7.1(h)(3); see also Flanagan v.
Shamo, 111 F.Supp.2d 892, 894 (E.D. Mich. 2000).
Civ. P. 59(e) also may be used as a vehicle for seeking
reconsideration of a court's prior ruling. Generally,
there are three situations which justify reconsideration
under Rule 59(e): (1) to correct a clear error of law; (2) to
account for newly discovered evidence; (3) to accommodate an
intervening change in controlling law; or (4) to prevent
manifest injustice. Intera Corp. v. Henderson, 428
F.3d 605, 620 (6th Cir. 2005); see also GenCorp, Inc. v.
Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir.
1999). However, like the Local Rule, motions under Rule 59(e)
“are not intended as a vehicle to relitigate previously
considered issues; should not be utilized to submit evidence
which could have been previously submitted in the exercise of
reasonable diligence; and are not the proper vehicle to
attempt to obtain a reversal of a judgment by offering the
same arguments previously presented.” Kenneth Henes
Special Projects Procurement v. Continental Biomass
Industries, Inc., 86 F.Supp.2d 721, 726 (E.D. Mich.
2000). “A motion to alter or reconsider a judgment is
an extraordinary remedy and should be granted
sparingly.” Plaskon Elec. Materials, Inc. v.
Allied-Signal, Inc., 904 F.Supp. 644, 669 (N.D. Ohio
1995); United States v. Limited, Inc., 179 F.R.D.
541, 547 (S.D. Ohio 1998) (citing Sussman v. Salem, Saxon
& Nielsen, P.A ., 153 F.R.D. 689, 694 (M.D. Fla.
1994), Pennsylvania Ins. Guar. Ass'n v. Trabosh,
812 F.Supp. 522, 524 (E.D. Pa.1992)).
a motion for relief from judgment under Fed.R.Civ.P. 60(b) is
an extraordinary remedy. Both the U.S. Supreme Court and the
Sixth Circuit have repeatedly held that relief under Rule
60(b) is “extraordinary relief” to be granted
only in exceptional circumstances. Ackermann v. United
States, 340 U.S. 193, 202 (1950); Mallory v.
Eyrich, 922 F.2d 1273, 1281 (6th Cir. 1991); Hopper
v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294
(6th Cir. 1989); Pierce v. UMW Welfare & Retirement
Fund, 770 F.2d 449, 451 (6th Cir. 1985), cert.
denied, 474 U.S. 1104 (1986).
circumstances under Rule 60(b) means “unusual and
extreme situations where principles of equity
mandate relief.” Olle v. Henry &
Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990)
(emphasis in original). A claim of simple error,
unaccompanied by extraordinary or exceptional circumstances,
is not cognizable under Rule 60(b). Pierce v. UMW Welfare
& Retirement Fund, supra, 770 F.2d at 451.
application of the foregoing authorities, the Court will deny
Plaintiff's December 19, 2016 motion. Plaintiff's
motion merely presents the same issues already ruled upon by
the Court, either expressly or by reasonable implication.
Furthermore, Plaintiff has not shown a “palpable
defect” by which the Court has been misled.
mistakenly believes that the Court did not consider the
“entire” foreclosure by advertisement statute, in
particular M.C.L. § 600.3204(1)(b), which permits a
foreclosure by advertisement only if “[a]n action or
proceeding has not been instituted, at law, to recover the
debt secured by the mortgage. . . .” Contrary to
Plaintiff's belief, the filing of its “Complaint to
Stay Foreclosure and/or Force Judicial Foreclosure” on
May 27, 2016 -- after foreclosure proceedings had been
initiated and were, but for the actual Sheriff's sale,
completed -- is not such an “action at law to recover
the debt secured by the ...