United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING PLAINTIFF'S MOTION
FOR RECONSIDERATION (DKT. 90)
A. GOLDSMITH United States District
the Court is Plaintiff Sexual Sin De Un Abdul Blue's
motion to re-state clause [sic] of actions and the city of
River Rouge as the defendant in light of newly-discovered
evidence and motion for leave to amend (Dkt. 90). This motion
was originally pending before Magistrate Judge Mona K.
Majzoub, but is now before this Court in light of the
motion's request to reconsider the Court's March 28,
2017 decision. See 3/28/2017 Op. & Order (Dkt.
53). Specifically, Blue asks this Court to reconsider its
decision to dismiss both Defendant City of River Rouge and
various federal and state law claims. Blue also requests
leave to amend his complaint. For the reasons stated below,
the Court denies Blue's motion.
MOTION FOR RECONSIDERATION
for reconsideration may be granted when the moving party
shows: (i) a palpable defect; (ii) by which the court and the
parties were misled; and (iii) the correction of which 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.” Olson v. The Home Depot, 321 F.Supp.2d
872, 874 (E.D. Mich. 2004).
also references Federal Rule of Civil Procedure 59(e), which
allows for motions to alter or amend a judgment. However,
“[t]he term ‘judgment' as used in the Federal
Rules of Civil Procedure . . . encompasses final judgment and
appealable interlocutory orders.” Phillips v.
Teamsters Local Union No. 957, No. 05-292, 2007 WL
397011, at *1 (S.D. Ohio Jan. 31, 2007). The requirement of a
judgment as a prerequisite to a Rule 59(e) motion
“protects against piecemeal review because the denial
of a Rule 59(e) motion is itself a final, appealable
order that Blue seeks to alter or amend was a partial grant
of summary judgment and a grant of a motion to dismiss, which
dismissed certain claims and Defendants while leaving others
in the case. See 3/28/2017 Order at 12. Though the
Court could have chosen to enter final judgment as to the
dismissed claims or parties, it did not do so. See
Fed.R.Civ.P. 54(b) (“[T]he court may direct
entry of a final judgment as to one or more, but fewer than
all, claims or parties only if the court expressly determines
that there is no just reason for delay.”) (emphasis
added). Thus, the March 28, 2017 Order “does not end
the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment[.]”
Id. As a judgment has not yet been entered, a motion
to alter or amend a judgment under Rule 59(e) is not an
appropriate vehicle for reconsideration of the March 28, 2017
Order. See Blair v. Bd. of Trustees of Sugarcreek
Twp., No. 07-056, 2008 WL 4372665, at *2 (S.D. Ohio
Sept. 22, 2008) (finding that Rule 59(e) did not apply to an
order that “adjudicates fewer than all of the claims,
entails a partial grant of summary judgment, and is not
immediately appealable”); see also Loomis v.
Chrysler Corp., 4 Fed. App'x 214, 215 (6th Cir.
2001) (“The court properly denied the motion to alter
or amend because no final judgment had been entered in the
case at the time the motion was filed.”).
Court will, therefore, consider the motion as one for
reconsideration under the Local Rules.
Blue's Motion is Untimely
initial matter, Blue's motion is untimely. Pursuant to
the Local Rules, a motion for reconsideration “must be
filed within 14 days after the entry of the judgment or
order.” E.D. Mich. L.R. 7.1(h)(1). Here, the Court
issued the order dismissing the City of River Rouge and
certain claims against other Defendants on March 28, 2017.
Blue did not file the instant motion until July 27, 2017,
nearly four months later. Blue's motion can be denied on
this ground alone. See, e.g., Majchrzak
v. County of Wayne, 838 F.Supp.2d 586, 597 (noting that
a motion for reconsideration may be denied on the basis of
Blue Has Failed to Identify a “Palpable
aside the failure to timely file his motion, Blue has not
identified a “palpable defect” that misled this
Court. Blue argues that Defendants used false documents to
support their claim that there was probable cause to arrest
him. See Pl. Mot. at 1 (cm/ecf page). Specifically,
Blue contests Defendants' claim that Defendant Edward
Otis contacted the River Rouge Building Department on March
31, 2013 and determined that Blue was not the owner of 50
Orchard Street. See id. at 2 (cm/ecf page). Blue
argues that “the forfeit documents that the
defendant's [sic] use in support w[ere] from another
property in Wayne County, that had nothing to do with the
Plaintiff[.]” Id. In support, Blue attaches a
Judgment of Foreclosure filed in Case No. 12-007968-CH in the
Third Judicial Circuit Court for Wayne County (Dkt. 90-3) and
an affidavit, which concerns 18900 Murray Hill, filed in that
same case (Dkt. 90-4). The affiant states that 18900 Murray Hill
was fraudulently assessed.
argue that Blue's evidence does not show what he claims.
See Def. Resp. at 1 (Dkt. 94). They note that the
Judgment of Foreclosure entered in Wayne County Circuit Court
Case No. 12-007968-CH refers to multiple foreclosed
properties, all of which are listed in an attached
“Schedule A.” Def. Resp. at 11-12. Schedule A in
turn lists 50 Orchard as one of the foreclosed properties.
See Judgment of Foreclosure, Schedule A, Ex. D to
Def. Resp. (Dkt. 94-5). Defendants argue that the affidavit
regarding 18900 Murray Hill has nothing to with this case,
other than that 50 Orchard and 18900 Murray Hill were both
foreclosed upon in Civil Action No. 12-007968-CH. Def. Resp.
at 11-12. Defendants also attach the Notice of Judgment of
Foreclosure for 50 Orchard, which indicates that the judgment
was entered in Civil Action No. 12-007968-CH (Dkt. 94-8).
Court agrees with Defendants. The Judgment of Foreclosure is
clear that it applies to multiple properties, including 50
Orchard. The fact that another property also had the same
civil case number as 50 Orchard does not show that Defendants
used false documents to support their claims. Accordingly,
Blue has not shown that the Court's decision relied upon
a palpable defect.
with respect to the City of River Rouge, Blue's 42 U.S.C.
§ 1983 claim against the City required an allegation
that his injury was caused by an unconstitutional policy or
custom of the municipality. See Monell v. Dep't of
Soc. Servs., 436 U.S. 658 (1978) (holding that a
municipality can be held liable under § 1983 when the
government's policy or custom inflicts injury, but not
under a respondeat superior theory). The magistrate
judge, in recommending dismissal of the City, found that Blue
“failed to identify any unconstitutional policy,
custom, or practice that has been implemented, followed, or
enforced by Defendant City of River Rouge that caused his
injury.” 2/7/2017 Report & Recommendation at 11
(Dkt. 49). Blue did not object to the dismissal of the City
of River Rouge. See 3/28/2017 Order at 11-12