United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING PLAINTIFF'S MOTION
FOR RECONSIDERATION (Dkt. 46)
A. GOLDSMITH United States District Judge.
August 18, 2017, this Court entered an order granting in part
and denying in part Defendants Roger Gerlach, Savithri
Kakani, and Thomas LaNore's motion to dismiss (Dkt.
See 8/18/2017 Op. & Order (Dkt. 39). The Court
held that the statute of limitations had expired as to claims
arising out of injuries that occurred before May 20, 2013;
this included all conduct alleged with respect to Gerlach,
who was dismissed from the case. See id. at 8-9.
Plaintiff Re'Shane Lonzo, as the representative of the
Estate of Richie Majors, now asks the Court to reconsider its
order. See Pl. Mot. for Reconsideration (Dkt. 46).
For the reasons that follow, the Court denies Plaintiff's
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). 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
argues that the Court erred in determining as a matter of law
that the statute of limitations had expired. Pl. Mot. at 2.
The Court had reasoned that the statute of limitations
started to run on May 20, 2013 - three years and thirty days
prior to the death of the decedent Richie Majors - because
Majors “apparently had immediate notice of all facts
necessary to bring a lawsuit, including the cause, effect,
and perpetrators of the alleged wrongful conduct.”
8/18/2017 Order at 6-7. According to Plaintiff, neither the
parties nor this Court are capable of determining whether
Majors was capable of instituting legal proceedings before
May 20, 2013. Pl. Mot. at 2. Plaintiff requests that the
Court allow the parties to conduct discovery into Majors'
medical and psychological history before making such a
determination. Id. at 5.
Gerlach, Kakani, and Lanore argue that Plaintiff is
improperly using her motion for reconsideration to raise a
new legal argument that she could have raised previously.
Def. Resp. at 1-2 (Dkt. 64). The Court agrees. “[A]
motion for reconsideration is not properly used as a vehicle
to . . . advance positions that could have been argued
earlier but were not.” Smith ex rel. Smith v. Mount
Pleasant Public Schs., 298 F.Supp.2d 636, 637 (E.D.
Mich. 2003); see also Sault Ste. Marie Tribe of Chippewa
Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)
(“Rule 59(e) motions are aimed at
reconsideration, not initial consideration. Thus,
parties should not use them to raise arguments which could,
and should, have been made before judgment issued.”)
(citing FDIC v. World Univ. Inc., 978 F.2d 10, 16
(1st Cir. 1992)) (emphasis in original).
the first time that Plaintiff has argued that Majors was
(potentially) incapable of initiating legal proceedings, and
she offers no reason why she could not have put forth this
argument earlier. Nor does Plaintiff offer any new evidence
in support of her position. She suggests that Majors
“suffered from at least some discernable symptoms of
multiple sclerosis before May 20, 2013[, ]” and that
“the substantial demyelinization of Major's [sic]
brain and spinal cord as of September 2014 begs the question
of when these pathological changes developed and whether they
contributed to any behavioral or cognitive
impairments[.]” Pl. Mot. at 3-4. But injury to
Majors' brain and spine was not new information to
Plaintiff -- Plaintiff alleged as much in her Amended
Complaint. And even now, Plaintiff does not argue
that there is evidence that Majors was insane or
otherwise mentally impaired - simply that she has “not
had the opportunity to conduct meaningful discovery into
Majors's mental deterioration.” Pl. Mot. at 3. But
Plaintiff offers no explanation why Plaintiff could not have
conducted an earlier investigation into Majors' mental
health, by reviewing sources of such information, such as
medical records, and interviewing family and friends. Because
Plaintiff's motion for reconsideration is not based on
new evidence but simply an argument that she could have, but
did not, bring previously, it is improper.
DISMISSAL OF OTHER DEFENDANTS
connection with its opinion and order dismissing Defendant
Gerlach and limiting Plaintiff's claims to conduct
occurring on or after May 20, 2013, the Court directed
Plaintiff to show cause as to why it should not apply its
statute-of-limitations holding to Defendants who did not join
in the motion to dismiss but nonetheless appear to be
entitled to relief. See 8/18/2017 Order to Show
Cause (Dkt. 40). In response, Plaintiff announced her intent
to bring the instant motion for reconsideration, but conceded
that Defendants who are on the far side of the date the Court
determines cuts off liability should be dismissed. Pl. Resp.
to Order at 2 (Dkt. 41). Accordingly, the Court's
dismissal of claims arising out of injuries that occurred
before May 20, 2013 shall apply to all Defendants. Further,
Defendants Robert Prevo and Heidi Smith - whose alleged
wrongful conduct took place in August 2011 - are dismissed.
foregoing reasons, Plaintiff's motion for reconsideration
(Dkt. 46) is denied. The dismissal of claims for injuries
that occurred before May 20, 2013 applies to all Defendants,
except that Defendants Prevo and Smith are dismissed from