United States District Court, E.D. Michigan, Southern Division
Nathan A. Vincent, Plaintiff,
Resurrection Cemetery, Defendant.
Steven Whalen, United States Magistrate Judge
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE
Plaintiff-Nathan A. Vincent-initiated this litigation on
March 7, 2017. See Dkt. No. 1. He sued the
Defendant, Resurrection Cemetery, alleging it discriminated
and retaliated against him in contravention of the Americans
with Disabilities Act (“ADA”) and the Persons
with Disabilities Civil Rights Act under Michigan law.
See Id. at pp. 13-19 (Pg. ID 13-19). The Defendant
moved for summary judgment on November 13, 2017, and the
Court denied the motion on January 22, 2018. See
Dkt. Nos. 16, 22.
before the Court is the Defendant's Motion for
Reconsideration of the Court's Opinion and Order Denying
the Defendant's Summary Judgment Motion . The
Defendant moves under Rule 59(e) of the Federal Rules of
Civil Procedure and Local Rule 7.1(h), and filed this motion
on February 5, 2018. The Court has not ordered a response
from the Plaintiff. See E.D. Mich. L.R. 7.1(h)(2).
For the foregoing reasons, the Court will DENY the
Defendant's Motion for Reconsideration .
sole issue on summary judgment was whether the
Plaintiff's December 15, 2015 Equal Employment
Opportunity Commission (“EEOC”) intake
questionnaire constituted a “charge.” All agree
that if Plaintiff's intake questionnaire was a charge,
then his claim must fail. In that scenario, he would have had
to-but did not-file a claim in federal court within ninety
days of the February 2, 2016 a right to sue
letter. See Dkt. No. 22. Because the
intake questionnaire was not verified, the Court concluded it
was not a charge and that Vincent's claim was timely
filed. See Id. Thus, the Court denied the
Defendant's summary judgment motion. See Id. As
this ruling was not clear or palpable error, the Court will
deny the Defendant's Motion for Reconsideration.
Charge Requirements for ADA Claim
moving for reconsideration bear a high burden of persuasion.
See E.D. Mich. L.R. 7.1(h)(3). First, the Eastern
District of Michigan local rules provide that:
Generally, and without restricting the Court's
discretion, the Court will not grant motions for rehearing or
reconsideration that merely present the same issues ruled
upon by the Court, either expressly or by reasonable
implication. The 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.
Id. And, “[a] ‘palpable defect' is
‘a defect that is obvious, clear, unmistakable,
manifest or plain.' ” Buchanan v. Metz, 6
F.Supp.3d 730, 752 (E.D. Mich. 2014) (quoting United
States v. Lockett, 328 F.Supp.2d 682, 684 (E.D. Mich.
“[a] Rule 59 motion should only be granted if there was
(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.” Mich. Flyer LLC v.
Wayne Cty. Airport Auth., 860 F.3d 425, 431 (6th Cir.
2017) (citing Leisure Caviar, LLC v. U.S. Fish &
Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010)).
“ ‘A motion under Rule 59(e), ” the Sixth
Circuit wrote, “ ‘is not an opportunity to
re-argue a case.' ” Id. (quoting Sault
Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d
367, 374 (6th Cir. 1998)). The court reasoned that “
‘[i]f a permissive amendment policy applied after
adverse judgments, plaintiffs could use the court as a
sounding board to discover holes in their arguments, then
reopen the case by amending their complaint to take account
of the court's decision.' ” Id.
(quoting Leisure Caviar, 616 F.3d at 616). Courts
have not utilized this approach because “ ‘[it]
would sidestep the narrow grounds for obtaining post-judgment
relief under Rules 59 and 60, make the finality of judgments
an interim concept and risk turning Rules 59 and 60 into
nullities.' ” Id. (quoting Leisure
Caviar, 616 F.3d at 616).
Court's holding was palpable or clear error, according to
Resurrection Cemetery, because verification is not
dispositive. Dkt. No. 26, p. 3 (Pg. ID 256). It contends that
instead the critical inquiry is whether an objectively
reasonable examination of the questionnaire reveals that
Vincent intended to initiate remedial action. Id.
Principally relying on Fed. Express Corp. v.
Holowecki, 552 U.S. 389 (2008), the Defendant then
maintains that the filing satisfies this test.
applies here, but the Defendant misunderstands its mandate.
The Holowecki court held that a charge must have two
characteristics: First, the filing must include “the
information required by the regulations, i.e., an
allegation and the name of the charged party”; and
second, “it must be reasonably construed as a request
for the agency to take remedial action to protect ...