United States District Court, E.D. Michigan, Southern Division
ALTERRA EXCESS & SURPLUS INSURANCE CO., Plaintiff/Counter-Defendant,
EXCEL TITLE AGENCY, LLC, EXCEL ESCROW SERVICES, LLC, and JANEL CHIPMAN, Defendants, and WESTERN AMERICAN PROPERTIES, INC., Defendant/Counter-Plaintiff.
OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
Western American Properties, Inc. ("WAP") moves the
Court to set aside its October 31, 2016 Order Granting
Plaintiff Alterra-Excess & Surplus Insurance
Company's Motion for Summary Judgment, and the
corresponding Judgment dismissing the case with prejudice.
The Court ordered a response from Plaintiff.
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). The
movant must show (1) a "palpable defect by which the
court and the parties and other persons entitled to be heard
on the motion have been misled"; and (2) 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 one that is "obvious,
clear, unmistakable, manifest or plain." United
States v. Cican, 156 F.Supp.2d 661, 668 (E.D. Mich.
ruling on a motion for summary judgment, the Court is
"not obliged to, and indeed should not, rely on the
nonmovant's version" of events if the
non-movant's allegations amount to "mere
allegations" unsupported by factual evidence.
Chappell v. City of Cleveland, 585 F.3d 901, 906
(6th Cir. 2009). In attempting to defeat a motion for summary
judgment, a non-moving party must rebut the movant's
factual assertions with "facts showing that there is a
genuine issue for trial." Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)
(quoting Fed.R.Civ.P. 56(e)). Courts need not afford the
non-movant "the benefit of reasonable inferences
required  to find a genuine fact issue based on an
unsupported hypothetical." Chappel, 585 F.3d at
913 (referencing Scott v. Harris, 550 U.S. 372,
380-81 (2007)). Courts are not to "accept implausible
inferences from circumstantial evidence." Stegall v.
Audette, 212 F.App'x. 402, 404 (6th Cir. 2006)
presents three factual issues here as "palpable
defects" sufficient to justify the exceptional grant of
a motion for reconsideration. ECF 68, PgID 1639. First, WAP
argues that the Court erred when it relied on the Perley
E-Mail because there was no evidence that ETA received it.
ECF 68, PgID 1641-42. But that scenario constitutes a
factually unsupported hypothetical that Chipman did not check
her email. The Court properly discounted inferences arising
from the unsupported hypothetical.
WAP asserts that the Court erred when it relied on the Perley
E-Mail even though the plain reading of the email
"reveals that it confirmed a settlement whereby WAP
would accept property from Metro Equity Group, LLC
("MEG") in lieu of a return of any deposit money
and there was no evidence regarding ETA's knowledge of
the settlement's status before its application was
completed on March 22, 2010 because such knowledge would be a
precondition in foreseeing whether a future claim was
likely[.]" ECF 68, PgID 1639, 1643-46. The record
contradicts WAP's assertion. On December 10, 2009, Perley
filed a lawsuit against EES, Janel Chipman, and others in the
U.S. District Court for the Central District of California.
ECF 50-23, PgID 1260. The lawsuit was filed during the period
between Perley's demand for payment by October 22, 2009
and ETA's execution of its Alterra insurance policy on
March 22, 2010. The escalation to litigation during that
period indicated that an amicable resolution of the dispute
was not achieved on March 22, 2010. And the Court cannot
adopt the inference that the lawsuit did not provide Chipman
or ETA with "knowledge of the settlement's
status" before executing the insurance policy with
WAP contends that the Court erred when it relied on the
Perley E-Mail "where the only acts ETA engaged in were
two transfers of WAP's funds to Excel Escrow Services,
LLC ("EES") (the first on August 18, 2008 and the
second on September 10, 2008), which were made at its
underwriter's insistence and thereafter ETA took no
further action related to WAP or the underlying
transaction[.]" ECF 68, PgID 1639, 1646-48. The record
shows that similar transactions with similarly situated
investors resulted in lawsuits against MEG, EES, ETA, and
Chipman in 2008 and 2009. See ECF 50-15, 50-20,
50-21. But the inference that past litigation related to
similar plaintiffs and similar transactions does not provide
a basis for knowing or reasonably foreseeing a future claim
is not dispositive.
considering the arguments, the Court concludes that WAP does
not offer a showing of a palpable defect to justify
reconsideration of the Court's prior decision.
it is hereby ORDERED that Defendant's
Motion for Reconsideration  is DENIED.