United States District Court, E.D. Michigan, Southern Division
M.D. Doe, et al., Plaintiffs,
Livonia Public Schools, et al., Defendants.
K. Majzoub Judge
ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR
RECONSIDERATION  AND GRANTING IN PART DEFENDANTS'
MOTION FOR RECONSIDERATION 
E. LEVY United States District Judge
December 21, 2017, the Court issued an order dismissing
certain of plaintiffs' claims, based on a review of the
record and a portion of defendants' motion for summary
judgment setting forth claims that plaintiffs had purportedly
stipulated to dismiss. (Dkt. 263.)
was also based on a review of plaintiffs' response to the
motion for summary judgment, which contained no identified
response to defendants' argument that plaintiffs had
stipulated to dismiss the claims set forth in the motion for
have filed a motion for reconsideration, arguing that they
did not stipulate to dismiss their claims regarding the
denial of a free, appropriate public education, or to dismiss
the constitutional claims of plaintiff C.W. Doe. (Dkt. 264.)
prevail on a motion for reconsideration under Local Rule 7.1,
a movant must “not only demonstrate a palpable defect
by which the court and the parties and other persons entitled
to be heard on the motion have been misled but also show 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 that is obvious, clear,
unmistakable, manifest or plain.” Witzke v.
Hiller, 972 F.Supp. 426, 427 (E.D. Mich. 1997). 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 Cir. 2006). Motions for
reconsideration should not be granted if they “merely
present the same issues ruled upon by the court, either
expressly or by reasonable implication.” E.D. Mich. LR
7.1(h)(3). But “parties cannot use a motion for
reconsideration to raise new legal arguments that could have
been raised before a judgment was issued.” Roger
Miller Music, Inc. v. Sony/ATV Publ'g, 477 F.3d 383,
395 (6th Cir. 2007).
first argument is that they did not stipulate to the
dismissal of their claims to a free, appropriate public
education (“FAPE”) in the first seventeen counts
of their complaint. Plaintiffs have stipulated that
“there is no constitutional right to a FAPE,
” but argue that they are instead seeking to recover
for the deprivation of a FAPE under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C.
§ 1400 et seq. (Dkt. 264 at 3.) However,
plaintiffs' complaint states that each defendant
identified in the complaint deprived the plaintiffs of their
“substantive due process rights to a free, appropriate
and least restrictive education possible.” (Dkt. 1 at
10-41.) This is a constitutional claim brought under the
Fourteenth Amendment to the United States Constitution.
See Washington v. Glucksberg, 521 U.S. 702, 719-20
(1997) (setting forth the boundaries of substantive due
process under the Due Process Clauses of the Fifth and
complaint does not mention the IDEA, and does not assert a
cause of action under the IDEA. Plaintiffs argue that
generally asserting a cause of action under 42 U.S.C. §
1983 constituted stating a claim under IDEA, and in the
alternative, seek leave in their response to the motion for
summary judgment to amend their complaint to assert IDEA
claims. (Dkt. 264 at 3 (quoting Dkt. 252 at 72-74).)
pleaded constitutional claims regarding a free, appropriate
public education in their complaint, and they acknowledge
they they are no longer pursuing these claims. The Court
dismissed those claims based on that acknowledgement, and
made no palpable error in doing so. To the extent plaintiffs
wish to seek leave to amend their complaint at the summary
judgment stage to assert claims under IDEA, the plaintiffs
must file a separate motion to amend in compliance with E.D.
Mich. Local R. 15.1.
second argument is that they did not intend to dismiss
plaintiff C.W. Doe's constitutional claims. (Dkt. 264 at
4.) Plaintiffs conceded that C.W. Doe's constitutional
claims were “probably” resolved or rendered moot
by the decision in Gohl v. Livonia Public Schools,
(Dkt. 237 at 3), and never again mentioned those claims in
their submission to the Court regarding the impact of the
Gohl decision. However, plaintiffs now contend that
they did not intend to waive C.W.
constitutional claims in that submission, and the Court will
have filed a motion for reconsideration, although it is
better deemed a motion for clarification. Defendants request
that the Court explicitly state that the claims dismissed in
the Court's order be dismissed with prejudice, and that
the Court add Counts 52 and 53 to the portion of the order
stating each claim that was dismissed.
reasons set forth above, it is hereby ordered that:
motion for reconsideration (Dkt. 264) is GRANTED with respect
to the reinstatement of plaintiff C.W. Doe's
constitutional claims and DENIED with respect to the
reinstatement of their constitutional claims for a free,
appropriate public education; and Defendants' motion for
reconsideration/clarification (Dkt. 265) is GRANTED IN PART.
Counts 13, 18 through 33, 35 through 50, 52, 53, 81, and 85,
as well as the portions of Counts 1 through ...