United States District Court, E.D. Michigan, Southern Division
TRUSTEES OF THE LABORERS PENSION FUND-DETROIT & VICINITY; et al ., Plaintiffs,
PG SIMON ON SITE INC., Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR
GERSHWIN A. DRAIN, UNITED STATES DISTRICT JUDGE
before the Court is the Defendant's Motion for
Reconsideration, filed on February 15, 2017. Defendant seeks
reconsideration of an Order entered on January 9, 2017 by the
district judge who previously presided over the instant
matter. Specifically, Judge Gerald Rosen entered an Order
granting the Plaintiffs' Motion for Amended Judgment and
awarded Plaintiffs the total sum of $65, 078.52, consisting
of delinquent fringe benefit contributions of $59, 171.55,
$5, 574.28 in liquidated damages resulting from
Plaintiffs' third party vendor audit, and $332.69 in
liquidated damages resulting from late payments, plus
interest, costs and attorney fees pursuant to 29 U.S.C.
§ 1132(g)(2). Defendant claims that the audit report,
upon which Judge Rosen's January 9, 2017 Order relies, is
inaccurate in several respects.
matter was reassigned to the undersigned on February 1, 2017.
On February 9, 2017, this Court entered an order requiring
additional briefing on Defendant's Motion for
Reconsideration. Accordingly, on February 15, 2017,
Plaintiffs filed their Response to Defendant's Motion for
Reconsideration. Defendant filed a Reply in support of its
Motion for Reconsideration on February 22, 2017. Upon review
and consideration of the parties' submissions, the Court
will deny Defendant's Motion for Reconsideration.
Plaintiffs are the Trustees of the Detroit Laborers'
Fringe Benefit Funds. They filed the instant action seeking
to compel an audit and recover unpaid fringe benefit
contributions owed to the funds for work performed by its
laborer employees pursuant to collective bargaining
agreements. A subsequent audit by Kem Whatley revealed that
Defendant's indebtedness to the funds for the applicable
period was $65, 078.52, consisting of $59, 171.55 in
contributions, $5, 574.28 in liquidated damages resulting
from the audit, and $332.69 in liquidated damages resulting
from late payments. When Defendant did not pay the funds in
accordance with the audit results, Plaintiffs filed a Motion
for Amended Judgment. Defendant responded to the
Plaintiffs' Motion for Amended Judgment and argued that
Mr. Whatley's audit was inaccurate. However, Defendant
failed to provide any evidence in support of its contention
that the audit contained errors.
January 9, 2017, Judge Rosen issued his Order Granting the
Plaintiffs' Motion for Amended Judgment. In rejecting the
Defendant's argument that the audit was inaccurate, Judge
Rosen stated that “[u]nsupported claims of inaccuracy
are insufficient to rebut the validity of the audit. . . .
Since Defendant here has provided no documentary evidence of
any kind to establish that the auditor's conclusion is
incorrect, it has failed to meet its burden of rebutting the
validity of the audit. Therefore, pursuant to the terms of
the Consent Judgment entered in this case on April 3, 2015,
the Court will enter an Amended Judgment in accordance with
the audit results.” See Dkt. No. 15 at 4-5.
Law & Analysis
Rule 7.1(h)(3) of the Local Rules of the United States
District Court for the Eastern District of Michigan 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.
E.D. Mich. L.R. 7.1(h)(3). “A ‘palpable
defect' is ‘a defect that is obvious, clear,
unmistakable, manifest, or plain.'” United
States v. Lockett, 328 F.Supp.2d 682, 684 (E.D. Mich.
2004) (citing United States v. Cican, 156 F.Supp.2d
661, 668 (E.D. Mich. 2001)). “[A] motion for
reconsideration is not properly used as a vehicle to re-hash
old arguments or to advance positions that could have been
argued earlier but were not.” Smith ex rel. Smith
v. Mount Pleasant Pub. Sch., 298 F.Supp.2d 636, 637
(E.D. Mich. 2003) (citing Sault Ste. Marie Tribe of
Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th
Defendant has failed to establish a palpable defect by which
the Court and the parties have been misled. Defendant's
present motion merely re-raises arguments that have already
been reviewed and rejected by this Court. Defendant reasserts
that Mr. Whatley's audit was inaccurate. In support,
Defendant provides the affidavit of Defendant's owner,
Philip Simon. However, it is inappropriate for the Court to
consider an affidavit that should have been filed in support
of Defendant's response in opposition to the
Plaintiffs' Motion for Amended Judgment.
even if Mr. Simon's affidavit was properly before the
Court, it would not change the result. Mr. Simon's
affidavit fails to address the fact that contributions for
the months of January through September of 2012 have not been
paid to the funds. Nor has Defendant submitted any
documentary evidence establishing that these contributions
have been paid. Additionally, Defendant is incorrect in
claiming that the Laborers Specialized Services Agreement
governs the contribution payments owed to the funds. The
Laborers Specialized Services Agreement expired on April 1,
2010, which was before the period covering the audit. The
governing agreement-the Specialized Coatings Agreement-became
effective November 1, 2011. Thus, the Specialized Coatings
Agreement was properly relied upon by Mr. Whatley in
calculating the amounts owed to the funds beginning in
January of 2012.