United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION FOR RECONSIDERATION
L. LUDINGTON United States District Judge.
19, 2016 Plaintiff Robert Salazar initiated the
above-captioned diversity action by filing his complaint
against Defendants Harbor Freight Tools USA, Inc., and
Defendant Bada Mechanical. See Compl. ECF No. 2.
Plaintiff alleged that he was injured by a malfunctioning
electrical hoist that he purchased from Defendant Harbor
Freight, which was manufactured by Defendant Bada. Compl.
¶ 6-17. He therefore asserted one count of negligent
manufacturing and design against Defendant Bada and one count
of negligent sale and distribution against Defendant Harbor
Freight. Compl. ¶¶ 18-25.
August 29, 2016 Defendant Harbor Freight filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
See ECF No. 7. Harbor Freight then filed an amended
motion to dismiss on August 31, 2016. In both motions, Harbor
Freight contended that Plaintiff had not satisfied the
requirements for asserting a products liability action
against a non-manufacturing seller as set forth in Michigan
Compiled Law 600.2947. See Def.'s Amend. Mot.
Dismiss, ECF No 9. In response Plaintiff Salazar moved to
amend his complaint. See Pl.'s Mot Amend, ECF
order dated November 18, 2016, Defendant Harbor Freight's
motion to dismiss was granted and Plaintiff's motion to
amend was granted in part and denied in part. Plaintiff's
motion was denied to the extent he sought to restate his
implied warranty claim against Harbor Freight and sought to
state an express warranty claim based on the alleged
representation of Defendant Harbor Freight's
representatives. However, Plaintiff's motion was granted
to the extent he sought to assert a breach of express
warranty claim against Defendant Harbor Freight based on the
90-day limited warranty. Taking all alleged facts in the
light most favorable to the Plaintiff, the Court reasoned
that the hoist could have been purchased for a consumer
purchase, and therefore any elimination of consequential
damages for personal injury would be unenforceable under
M.C.L. 440.2719. Plaintiff was directed to file an amended
complaint “in conformity with [the Court's]
opinion” on or before December 2, 2016.
December 1, 2016 Plaintiff filed an amended complaint that
did not comply with the Court order granting him leave to
amend. See ECF No. 21. Defendant Harbor Freight
therefore filed a motion to strike the amended complaint and
a motion to dismiss the amended complaint. See ECF
Nos. 22, 23. On December 20, 2016 Defendant's motion to
strike was granted. Plaintiff filed a proper amended
complaint on December 22, 2016. See ECF No. 26.
December 2, 2016 Defendant Harbor Freight moved for
reconsideration of the order granting in part and denying in
part Plaintiff's motion to amend. A motion for
reconsideration will be granted if the moving party shows:
“(1) a palpable defect, (2) the defect misled the court
and the parties, and (3) that correcting the defect will
result in a different disposition of the case.”
Michigan Dept. of Treasury v. Michalec, 181
F.Supp.2d 731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich.
LR 7.1(g)(3)). A “palpable defect” is
“obvious, clear, unmistakable, manifest, or
plain.” Id. at 734 (citing Marketing
Displays, Inc. v. Traffix Devices, Inc., 971 F.Supp.2d
262, 278 (E.D. Mich. 1997).
argues that the Court committed a palpable defect in finding
that the face of Plaintiff's complaint suggested that the
hoist could have been purchased for a consumer purpose.
Instead, Defendant argues, the hoist is not a “Consumer
Good” as defined by M.C.L. 440.9102(w) as “goods
that are used or bought for use primarily for personal,
family, or household purposes.” Defendant argues that
it did not previously raise this argument because M.C.L.
440.2719 was not cited by Plaintiff in any of his
filings. Plaintiff was directed to file a response.
response, Plaintiff argues that the Court properly assumed
that the hoist was a “Consumer Good” for the
purpose of a Rule 12(b)(6) motion to dismiss. Plaintiff
argues that he did not allege that he was engaged in a trade
or business related to the purchase of the hoist and that the
hoist was exclusively used for household purposes. Because
the Court did not commit any palpable defect in assuming for
the purpose of a motion to dismiss that the hoist was used
for a consumer purpose - particularly where Defendant Harbor
Freight did not raise any such argument in its motion to
dismiss - Defendant Harbor Freight's motion for
reconsideration will be denied.
it is ORDERED that Defendant Harbor Freight's motion for
reconsideration, ECF No. 22, is DENIED.
 Defendant also argues that this Court
erred in making a legal and factual finding that the hoist
was purchased for a consumer purpose. The Court's finding
in this regard was driven by the plausibility standard of
review applied for purposes of Rule 12(b)(6) motions to
dismiss and motions to amend, and was not intended to
definitely resolve the issue. If and ...