United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION [ECF NO. 37]
V. PARKER U.S. DISTRICT JUDGE
Houda Ali Zaher (“Plaintiff”), through counsel,
initiated this action against Defendants Argent Mortgage
Company LLC (“Argent”), AMC Mortgage Services,
Inc. (“AMC”), Citi Residential Lending Inc.
(“Citi”), American Home Mortgage Servicing, Inc.
(“AHMSI”), AH Mortgage Acquisition Co. Inc.
(“AH Mortgage”), Homeward Residential Inc.
(“Homeward”), and Ocwen Loan Servicing, LLC
(“Ocwen”) in state court on or about March 7,
2014, alleging that Defendants misapplied the payments she
made toward her residential mortgage loan and wrongfully
claimed she was in default on the loan. In an Opinion and
Order entered on January 18, 2017, this Court granted
Defendants' motion to dismiss Plaintiff's First
Amended Complaint. (ECF No. 35.) Presently before the Court
is Plaintiff's Motion Pursuant to Fed.R.Civ.P. 59(e),
60(b), and L.R. 7.1(g)(3) for Reconsideration of the Court's
January 18, 2017 Order Granting Defendants' Motion to
Dismiss, filed February 1, 2017. (ECF No. 37.)
Rule 7.1 provides the following standard for motions for
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.
Mich. LR 7.1(h)(3). Palpable defects are those which are
“obvious, clear, unmistakable, manifest or
plain.” Mich. Dep't of Treasury v.
Michalec, 181 F.Supp.2d 731, 734 (E.D. Mich. 2002).
“It is an exception to the norm for the Court to grant
a motion for reconsideration.” Maiberger v. City of
Livonia, 724 F.Supp.2d 759, 780 (E.D. Mich. 2010).
“[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 Cir.1998)).
first argues that this Court lacked subject-matter
jurisdiction and therefore committed a palpable defect by
hearing this case. (ECF No. 37 at Pg ID 995.) Plaintiff
contends that there was a lack of complete diversity as
required by 28 U.S.C. § 1332. In particular, Plaintiff
states that Defendants Citi and Argent “had (a) a
resident agent in Michigan and conducted business in
Michigan, as evidenced by their Certificates filed with the
State of Michigan.” 28 U.S.C. § 1332 governs
diversity of citizenship. 28 U.S.C. § 1332(c) provides
that “a corporation shall be deemed to be a citizen of
every State and foreign state by which it has been
incorporated and of the State or foreign state where it has
its principal place of business[.]” In their removal
motion, Defendants stated that Citi is a Delaware
corporation, wholly owned by Citibank, N.A, with a principal
place of business in New York. (ECF No. 1 at Pg ID 4.) Argent
was acquired by Citi in 2008. (ECF No. 1 at Pg ID 5.) As a
wholly owned subsidiary of Citi, Argent has the same state of
incorporation and principal place of business as Citi -
Delaware and New York respectively.
contends they have previously raised the issue of the
Court's lack of subject-matter jurisdiction. However,
Plaintiff never filed a motion pursuant to Federal Rule of
Civil Procedure 12(b)(1) or provided evidence that the
articles of incorporation or principal place of business at
the time of filing the complaint was Michigan. The Court
finds that no palpable defect exists related to its
jurisdiction in this matter.
Plaintiff alleges that Defendants' motion to dismiss was
improperly converted to a motion for summary judgment because
this Court's opinion “shows that it considered
various documents and evidence outside the
pleadings[.]” (ECF No. 37 at Pg ID 997.) According to
Plaintiff, converting the motion to dismiss to a motion to
summary judgment amounts to a palpable defect. (Id.)
Court stated in its Opinion and Order on the motion to
dismiss, “[w]hen a court is presented with a Rule
12(b)(6) motion, it may consider the [c]omplaint and any
exhibits attached thereto, public records, items appearing in
the record of the case and exhibits attached to [the]
defendant's motion to dismiss, so long as they are
referred to in the [c]omplaint and are central to the claims
contained therein.” Bassett v. Nat'l Collegiate
Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).
Plaintiff does not flag any exhibits in particular that
violate this standard. Upon the Court's review, it is
clear that the documents relied on satisfy the standard
articulated in Bassett.
short, Plaintiff fails to demonstrate a palpable defect in
this Court's January 18, 2017 decision.
also requested relief pursuant to Federal Rule of Civil
Procedure 60(b)(1), which provides that a court may relieve a
party from a final judgment for “mistake, inadvertence,
surprise, or excusable neglect[.]” Fed.R.Civ.P.
60(b)(1-(6). For the reasons stated above, the Court finds
that relief pursuant to Rule 60(b)(1) is improper. This Court
has subject-matter jurisdiction over this matter and
Defendants' motion to dismiss was not converted to a
summary judgment motion.
IT IS ORDERED that Plaintiff's motion for reconsideration
(ECF No. 37) is DENIED.