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Palmer v. Schuette

United States District Court, E.D. Michigan, Southern Division

September 11, 2017

BRIAN PALMER, Plaintiff,


          Denise Page Hood Chief Judge, United States District Court.


         On December 19, 2014, Plaintiff Brian Palmer filed a three-count Complaint against Defendants Bill Schuette (“Schuette”) and Scott Teter (“Teter”). On September 27, 2016, the Court entered an Order Granting Defendants' Motion to Dismiss. [Dkt. No. 18] On October 13, 2016, Plaintiff filed a Combined Motion for Reconsideration and Motion to Amend the Complaint (“Combined Motion”) [Dkt. No. 20], to which Defendants filed a response and Plaintiff filed a reply. The Court, having concluded that the decision process would not be significantly aided by oral argument, previously ordered that the motion be resolved on the motion and briefs submitted by the parties. E.D. Mich. L.R. 7.1(f)(2). [Dkt. No. 22] For the reasons that follow, the Court denies the Combined Motion.


         The relevant facts regarding this matter were set forth in the Court's September 27, 2016 Order and, rather than restate them here, the Court incorporates them by reference in this Order. The following facts are relevant to the Combined Motion.

         Plaintiff is a former Michigan state representative who was charged in a misdemeanor complaint with, and entered a no-contest plea in the 54A District Court to, one count of willful neglect of duty under M.C.L. § 750.478. M.C.L. § 750.478 provides:

When any duty is or shall be enjoined by law upon any public officer, or upon any person holding any public trust or employment, every willful neglect to perform such duty, where no special provision shall have been made for the punishment of such delinquency, constitutes a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1, 000.00.

         Prior to and at the time Plaintiff entered his no-contest plea, he “was self-employed as a partner and the president of his own venture capital company.”

         Teter is an assistant attorney general in the office of the Michigan Attorney General who prosecuted Plaintiff. Schuette is the Attorney General for the State of Michigan, and he authorized the charge against Plaintiff.

         On December 20, 2013, the same day that Plaintiff entered his no-contest plea and was sentenced, Schuette issued, and Teter contributed to, a press release on the Michigan Attorney General website regarding Plaintiff's conviction. The press release was titled “Schuette Announces Conviction of Former Macomb State Representative for Role in Ponzi Scheme.” The press release stated, in part, that Plaintiff “assisted two other men to operate a $9 million Ponzi scheme that defrauded more than 150 persons between 2006 and 2012” and “used his position as an elected official to assist” others in operating a fraudulent investment company. [Dkt. No. 1, ¶¶ 24-26]

         Plaintiff's Complaint alleged that Defendants, acting in their individual capacities: (1) violated Plaintiff's due process rights under the Fifth and Fourteenth Amendments (Count I); (2) violated Plaintiff's Fourth Amendment right to be free from prosecution without probable cause (Count Two); and (3) defamed Plaintiff under the laws of the State of Michigan (Count Three). Plaintiff's Motion for Reconsideration challenges the Court's dismissal of Counts I and Count III but not the dismissal of Count II.


         A. Reconsideration Standard

         In order to obtain reconsideration of a particular matter, the party bringing the motion for reconsideration must: (1) demonstrate a palpable defect by which the Court and the parties have been misled; and (2) demonstrate that “correcting the defect will result in a different disposition of the case.” E.D. Mich. L.R. 7.1(h)(3). See also Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004); Aetna Cas. and Sur. Co. v. Dow Chemical Co., 44 F.Supp.2d 865, 866 (E.D. Mich. 1999); Kirkpatrick v. General Electric, 969 F.Supp. 457, 459 (E.D. Mich. 1997).

         A “palpable defect” is a “defect which is obvious, clear, unmistakable, manifest, or plain.” Olson v. The Home Depot, 321 F.Supp.2d 872, 874 (E.D. Mich. 2004). The movant must also demonstrate that the disposition of the case would be different if the palpable defect were cured. E.D. Mich. L.R. 7.1(h)(3). Brown v. Walgreens Income Protective Plan for Store Managers, No. 10-CV-14442, 2013 WL 1040530, at *1 (E.D. Mich. Mar. 15, 2013). “[T]he court will not grant motions for rehearing or ...

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