United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING DEFENDANT KYM L.
WORTHY'S MOTION FOR RECONSIDERATION (Dkt. 47)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
March 3, 2017, this Court granted Plaintiff Mary Roe's
motion for a preliminary injunction (Dkt. 46). On March 31,
Defendant Kim L. Worthy, the Wayne County Prosecutor, timely
filed a motion for reconsideration under Federal Rules of
Civil Procedure 52(b) and 59(e) (Dkt. 47). Roe responded
(Dkt. 52), and Worthy replied (Dkt. 54). Meanwhile, Defendant
Jessica Cooper, the Oakland County Prosecutor, appealed the
injunction (Dkt. 48), but the Sixth Circuit is holding that
appeal in abeyance pending this Court's resolution of
Rule 52(b), a “court may amend its findings - or make
additional findings - and may amend [a] judgment
accordingly.” Under Rule 59(e), a party may file a
motion to alter or amend an order if there is a clear error
of law, newly discovered evidence, an intervening change in
controlling law, or a need to prevent manifest injustice.
Henderson v. Walled Lake Consol. Schs., 469 F.3d
479, 496 (6th Cir. 2006).
makes three distinct arguments in her motion. First, she
Plaintiff asserted, without citing to any evidence, that
Defendant Royal Oak Police Officer Kevin Cavanagh was aware
of the Sixth Circuit decision in Does [# 1-5] v.
Snyder[, 834 F.3d 696 (6th Cir. 2016)] when he
interacted with her on August 28, 2016. . . . However,
Officer Cavanagh states that at the time he contacted
Plaintiff initially, he was only aware of the original trial
court decision in Does, and not the August 25, 2016
Sixth Circuit decision.
Br. at 2-3. In support, she provided a declaration to this
effect from Cavanagh dated April 6, 2017, several days after
the instant motion was due. See Cavanagh Decl., Ex.
1 to Worthy Mot. (Dkt. 50). Worthy does not explain why this
argument and evidence could not have been submitted for the
Court's consideration when it was deciding Roe's
motion for preliminary injunction. This argument, therefore,
is rejected. See Whitehead v. Bowen, 301 F.
App'x 484, 489 (6th Cir. 2008) (Under Rule 59(e),
“even if [admission of a new] affidavit were sufficient
to create a genuine issue of material fact, it . . . was, at
best, newly submitted evidence, not newly
discovered evidence.” (emphasis in original));
Dow Chem. Co. & Subsidiaries v. United States,
278 F.Supp.2d 844, 847 (E.D. Mich. 2003) (“Rule 52(b)
may not be used by the parties simply to relitigate issues
already decided or matters that could have been raised
earlier.”), rev'd in part sub nom. on other
grounds, Dow Chem. Co. v. United States, 435
F.3d 594 (6th Cir. 2006).
next argues that she does not have the ability to modify
Roe's public registry page. Worthy raises this issue, not
to request that she be carved out from this facet of the
injunction, but to show that Roe's injury in this regard
is not “fairly traceable” to Worthy's office.
See Worthy Br. at 3, 5. This argument, too, was
available to Worthy when the motion for preliminary
injunction was being briefed. See, e.g., Am. Compl.
¶ 70 (identifying label as “Tier III (most
dangerous) offender” on public registry as one
manifestation of Roe's injury). Yet the argument does not
appear in Worthy's response to Roe's motion (Dkt.
42), her motion to dismiss (Dkt. 33), or her reply brief on
her motion to dismiss (Dkt. 44). “[P]arties should not
use [Rule 59(e) motions] to raise arguments which could, and
should, have been made before judgment issued.”
Sault Ste. Marie Tribe of Chippewa Indians v.
Engler, 146 F.3d 367, 374 (6th Cir. 1998) (quoting
FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir.
Worthy claims that this Court erred when it considered the
pre-Does #1-5 enforcement of the Sex Offender
Registration Act, (“SORA”), Mich. Comp. Laws
§ 28.721 et seq., in evaluating the
“history of past enforcement” prong for
establishing pre-enforcement standing. See Worthy
Br. at 4. Worthy claims that “the fact that SORA's
geographic restrictions may have been enforced generally from
2006 to 2013 has no bearing on whether anyone will arrest or
prosecute Plaintiff for a school zone violation after the
August 2016 decision in [Does #1-5].
argument was considered and rejected on the original motion
for preliminary injunction, and Worthy shows no clear error
of law in this Court's analysis. Roe pointed to certain
pieces of evidence tending to show that the Does
#1-5 litigation did not definitively put a stop to
enforcement of the affected portions of SORA. See Roe v.
Snyder, __ F.Supp. 3D __, 2017 WL 840407, at *3 (E.D.
Mich. Mar. 3, 2017) (noting that Defendants continued to
enforce SORA's “Tier III” classification
provision notwithstanding Does #1-5). This makes the
past history of enforcement relevant. And, although this
Court discussed other pieces of evidence in the context of
different factors going to pre-enforcement standing, such as
Defendants' refusal to disavow prosecution, these
showings also support this Court's conclusion that the
pre-Does #1-5 history of enforcement remained
instance, a communication from the Michigan State Police,
which was issued to Roe after Does #1-5, listed
obligations that were unlawful under either the district
court's or Sixth Circuit's holdings, see
8/29/2016 Verification/Update Form, 2d Roe Decl. at 16-18
(cm/ecf pages), Ex. 8 to Pl. Resp. to Mot. to Stay (Dkt.
36-9); and a letter from the Prosecuting Attorneys
Coordinating Council merely advised Michigan prosecutors that
“[e]nforcement of the SORA amendments retroactively in
light of [Does #1-5] should be made with care . . ., ”
see PACC Memo at 5 (cm/ecf page), Ex. A to
Snyder/Etue Resp. to Pl. Mot. (Dkt. 25-1). Because Roe
affirmatively showed that there was not a “clean
break” between the pre- and post-Does #1-5
SORA-enforcement eras, the history of SORA's enforcement
remained relevant to discerning Roe's pre-enforcement
Worthy's motion raises an untimely factual argument and a
mix of legal arguments that were, or could have been, made
and considered when this Court was evaluating the
parties' arguments the first time around. Worthy's
motion is denied.