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Michigan Department of Environmental Quality v. City of Flint

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

October 27, 2017

CITY OF FLINT, Defendant, and FLINT CITY COUNCIL, Intervening defendant.


          DAVID M. LAWSON United States District Judge.

         The Court entered judgment in this case on October 17, 2017 directing defendant City of Flint to execute a long-term contract providing for a source of water for its water distribution by October 23, 2017. The contract must comply with an Emergency Administrative Order that had been issued several months earlier by the Environmental Protection Agency (EPA). The delay in finalizing such an agreement imperiled the solvency of Flint's water system and its future capacity to deliver safe drinking water to Flint's residents. The City of Flint has now concurred in the judgment's order for relief. Its City Council - an intervening defendant - has filed a motion for relief from that judgment, or to amend the judgment, or to stay the proceedings, because, it says (among other things), it wants more time to gather information and mull this over. Plaintiff Michigan Department of Environmental Quality (MDEQ) argues that much of the information that the City Council presents to support its new arguments comes too late in this litigation, and the urgent need for a long-term contract still exists. With one exception, the Court agrees. And that exception consists of a subject matter jurisdiction argument that is unpersuasive. Therefore, the Court will deny the City Council's motion.

         MDEQ discussed in its response to the motion various options for enforcing the judgment. But the Court does not act on its own in that realm. If the judgment remains unsatisfied, the plaintiff must take the initiative to file an appropriate motion for enforcement.


         The City Council presents six arguments: (1) there is no subject matter jurisdiction because MDEQ did not satisfy the 60-day notice provision of the Safe Drinking Water Act's citizen suit section; (2) Flint's rate of collecting water bills could improve to the point that insolvency of the water fund is not inevitable; (3) there are factual disputes that should have precluded summary judgment; (4) the Court was required to hold an evidentiary hearing before issuing a permanent injunction; (5) forcing Flint's legislative body to sign a contract violates certain state laws; and (6) a stay of the judgment is appropriate because Flint is not in danger of losing its source of drinking water. These arguments purportedly are based on Federal Rules of Civil Procedure 59(e), 60(b)(1), 60(b)(6), and 62(b), and Local Rule 7.1(h). Other than citing those rules in the first paragraph of its motion, the City Council does not discuss the requirements of those rules or mention them again in its brief. Appreciating those rules' requirements, however, is necessary to applying them.

         A party seeking relief under Rule 59(e) must show one of four things: “(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005) (citing GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)). The “newly discovered evidence, ” though, “‘must have been previously unavailable.'” HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 615 (6th Cir. 2012) (quoting GenCorp, 178 F.3d at 834). “[T]he newly discovered evidence also ‘must be of such a nature as would probably produce a different result, ' and it is well-settled that the requirements for newly discovered evidence are essentially the same under Rule 59(e) and 60(b)(2).” F.D.I.C. v. Arciero, 741 F.3d 1111, 1117 (10th Cir. 2013) (quoting Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1213 (10th Cir. 2012); 11 Charles A. Wright, Federal Practice and Procedure § 2859 (2012) (“The same standard applies to motions on the ground of newly discovered evidence whether they are made under Rule 59 or Rule 60(b)(2).”). However, “parties cannot use a motion for reconsideration [under Rule 59(e)] to raise new legal arguments that could have been raised before a judgment was issued.” Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d 383, 395 (6th Cir. 2007) (citing Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (stating that “[a] motion under Rule 59(e) is not an opportunity to re-argue a case”).

         A motion based on Rule 60(b)(1) is “intended to provide relief to a party in only two instances: (1) when the party has made an excusable litigation mistake or an attorney in the litigation has acted without authority; or (2) when the judge has made a substantive mistake of law or fact in the final judgment or order.” Cacevic v. City of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000) (internal quotation marks omitted). As with a Rule 59(e) motion, a party may not use Rule 60(b) “as an occasion to relitigate its case.” General Universal Systems, Inc. v. Lee, 379 F.3d 131, 157 (5th Cir. 2004).

         The Sixth Circuit has held that a court may grant relief under Rule 60(b)(6) “‘only in exceptional and extraordinary circumstances, ' which are defined as those ‘unusual and extreme situations where principles of equity mandate relief.'” Export-Import Bank of U.S. v. Advanced Polymer Sciences, Inc., 604 F.3d 242, 247 (6th Cir. 2010) (quoting Jinks v. AlliedSignal, Inc., 250 F.3d 381, 387 (6th Cir. 2001)). In addition, “something more than one of the grounds in subsections (1) through (5)” must be shown to justify relief under Rule 60(b)(6). East Brooks Books, Inc. v. City of Memphis, 633 F.3d 459, 465 (6th Cir. 2011).

         Rule 62(b) allows a court to stay the execution of a judgment in the short term if a post-judgment motion is pending under, among others, Rules 59 or 60. But such a stay must be “[o]n appropriate terms for the opposing party's security.” Fed.R.Civ.P. 62(b). “What constitutes ‘appropriate terms' is a matter left to the trial court's discretion, but normally the party seeking a stay is required to post a bond sufficient to protect fully the prevailing party's interest in the judgment.” Newburgh/Six Mile Ltd. P'ship II v. Adlabs Films USA, Inc., No. 09-11067, 2010 WL 3167393 at *1 (E.D. Mich. Aug. 9, 2010) (internal quotation marks and citations omitted). To obtain a longer stay, the moving party must show that four factors, in balance, favor that relief. Those factors are: “(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.” Service Employees Int'l Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012) (citing Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)); see also Jpmorgan Chase Bank, N.A. v. Winget, No. 08-13845, 2016 WL 627755, at *1 (E.D. Mich. Feb. 17, 2016). The factors are “interrelated considerations, ” ibid. (quoting Griepentrog, 945 F.2d at 153), meaning that a strong showing of irreparable injury, for example, might make up for a modest showing of likely success. Griepentrog, 945 F.2d at 153-54 (observing that “more of one excuses less of the other” (citations omitted)). However, a defendant seeking to stay a district court's judgment “is still required to show, at a minimum, ‘serious questions going to the merits.'” Ibid.

         Finally, under Local Rule 7.1(h), the moving party must show (1) a “palpable defect, ” (2) that misled the court and the parties, and (3) 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 which is obvious, clear, unmistakable, manifest, or plain. Mich. Dep't of Treasury v. Michalec, 181 F.Supp.2d 731, 734 (E.D. Mich. 2002) (citations omitted). “Generally . . . the court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court.” E.D. Mich. LR 7.1(h)(3).


         There is a common denominator among most of these rules: a party that has had a fair chance to present its arguments ought not have a second bite at the apple. Most of the City Council's present arguments could be dispatched under this rubric. However, the contention that the MDEQ failed to abide by the SDWA's citizen suit 60-day notice requirement requires special attention, because if subject matter jurisdiction is implicated, the issue can be raised at any time, even if a party passed on the opportunity earlier in the case.

         A. 60-day Notice Provision

         The SDWA's citizen suit provision contains this caution:

No civil action may be commenced--
(1) under subsection (a)(1) of this section respecting violation of a requirement prescribed by or under this subchapter--
(A) prior to sixty days after the plaintiff has given notice of such violation (i) to the Administrator, (ii) to any alleged violator of such requirement and (iii) to the ...

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