United States District Court, E.D. Michigan, Southern Division
Judge Stephanie Dawkins Davis
ORDER DENYING PLAINTIFFS' MOTION FOR
E. Levy United States District Judge
August 1, 2017, the Court issued an opinion and order
granting then-defendants Sandvik AB, Sandvik Mining and
Construction USA, LLC, and Sandvik Mining and
Construction's motions to dismiss for lack of personal
jurisdiction. (Dkt. 21.) Sandvik Mining and Construction does
not exist, and plaintiffs failed to meet their burden to show
that personal jurisdiction existed over the other two
have now filed a motion for reconsideration of that order.
(Dkt. 28.) The motion makes two primary arguments: first,
that plaintiffs require discovery and would have asked for it
at oral argument, had the Court held oral argument; and
second, that additional evidence demonstrates that personal
jurisdiction exists over Sandvik AB.
prevail on a motion for reconsideration under Local Rule 7.1,
a 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. LR 7.1(h)(3). “A
palpable defect is a defect that is obvious, clear,
unmistakable, manifest or plain.” Witzke v.
Hiller, 972 F.Supp. 426, 427 (E.D. Mich. 1997). The
“palpable defect” standard is consistent with the
standard for amending or altering a judgment under
Fed.R.Civ.P. 59(e). Henderson v. Walled Lake Consol.
Schs., 469 F.3d 479, 496 (6th Cir. 2006). Motions for
reconsideration should not be granted if they “merely
present the same issues ruled upon by the court, either
expressly or by reasonable implication.” E.D. Mich. LR
7.1(h)(3). But “parties cannot use a motion for
reconsideration to raise new legal arguments that could have
been raised before a judgment was issued.” Roger
Miller Music, Inc. v. Sony/ATV Publ'g, 477 F.3d 383,
395 (6th Cir. 2007).
a motion for reconsideration simply repeats the movant's
earlier arguments, without showing that something material
was overlooked or disregarded, presenting previously
unavailable evidence or argument, or pointing to substantial
error of fact or law, such motion is frivolous.”
Miller v. Norfolk S. Rwy. Co., 208 F.Supp.2d 851,
854 (N.D. Ohio 2002). Frivolous motions for reconsideration
are sanctionable under Rule 11. Id. at 852-53.
first argument, that they would have asked for additional
discovery had the Court held oral argument, is not a ground
for the Court to reconsider its ruling. Plaintiffs state that
“the Court made its finding and conclusions in this
matter without either Defendant filing an Answer to the
Complaint, and without allowing Plaintiff any
discovery.” (Dkt. 28 at 3.) Plaintiffs also attach the
affidavit of their counsel, Fred Custer, stating that he
would have asked for discovery regarding personal
jurisdiction at the oral argument scheduled on August 2,
2017, which the Court canceled. (Dkt. 28-1.)
first be noted that the motion for reconsideration was filed
by an attorney named Michael T. Materna, who has not filed an
appearance in this case, and appears on none of
plaintiffs' other filings, except for the ex
parte motion for leave to file excess pages, filed
forty-four minutes before this motion for reconsideration.
(Dkt. 27.) It is entirely unclear why new counsel is seeking
reconsideration of an order based largely on the actions
plaintiffs' actual counsel would have taken.
motion to dismiss for lack of personal jurisdiction must be
asserted by motion before an answer is filed. Fed.R.Civ.P.
12(b)(2). No matter what argument was presented by
plaintiffs, the defendants were required to file their
motions before answering, and the Court was required to rule
on the motions before any such answer could have been filed.
the substance of this argument, plaintiffs filed their
responses to the motions to dismiss on March 27, 2017. (Dkts.
15, 16.) Those responses did not seek discovery, but instead
provided a series of documents found using Google, and argued
that those, under applicable law, established personal
jurisdiction over the above-referenced defendants. Under E.D.
Mich. Local R. 7.1(f)(2), the Court may decline to hold oral
argument on any motion if it determines that such argument is
not warranted. The Court canceled oral argument on July 28,
2017, and issued its opinion on August 1, 2017. At no point
between March 27, 2017, and July 28, 2017, did
plaintiffs' counsel inform the Court that additional
discovery was needed to respond to the motions to dismiss.
with a properly supported 12(b)(2) motion and opposition, the
court has three procedural alternatives: it may decide the
motion upon the affidavits alone; it may permit discovery in
aid of deciding the motion; or it may conduct an evidentiary
hearing to resolve any apparent factual questions.”
Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th
Cir. 1991). When the Court rules on the affidavits alone, a
plaintiff “must make only a prima facie showing that
personal jurisdiction exists in order to defeat
dismissal.” Estate of Thomson ex rel. Estate of
Rakestraw v. Toyota Motor Corp. Worldwide, 545 F.3d 367,
360 (6th Cir. 2008) (quoting Theunissen, 935 F.2d at
1458). “Because weighing any controverted facts is
inappropriate at this stage, dismissal is proper only if [the
plaintiff's] alleged facts collectively fail to state a
prima facie case for jurisdiction.” Carrier Corp.
v. Outokumpu Oyj, 673 F.3d 430, 449 (6th Cir. 2012).
responses to the motions to dismiss failed to allege
sufficient facts to state a prima facie case for
personal jurisdiction over the dismissed defendants. In their
motion for reconsideration, plaintiffs cite a variety of
cases in which additional discovery was granted to parties
opposing motions to dismiss on the grounds of lack of
personal jurisdiction. (Dkt. 28 at 17.) None of these cases,
however, stand for the proposition that a plaintiff who has
failed to state a prima facie case for personal
jurisdiction in response to a motion to dismiss is entitled
to additional discovery to establish that case. And the
caselaw expressly contemplates that a court is permitted to
grant a motion to dismiss for lack of personal jurisdiction
on the briefing alone. This is particularly true where the
plaintiff does not argue that discovery is necessary, or that
discovery will lead to additional information sufficient to
establish personal jurisdiction over the defendant.
failure of counsel to seek leave for - or even mention -
additional discovery, despite the opportunity to do so,
cannot be a palpable defect by which the Court was misled.
The purpose of a motion for reconsideration is not to permit
parties to undo strategic errors. That is particularly so
where a defendant has filed a procedurally proper motion to
dismiss before discovery has begun, the plaintiff may be
entitled to some discovery if he or she can indicate how and
why the discovery is needed, and the plaintiff neglects to do
second argument relies on a rearguing of the same legal
issues already decided, and a raft of new exhibits. The Court
cannot consider any of the new exhibits, because on their
face, they are publicly available documents and plaintiffs
make no argument that these documents were not ...