United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION FOR RECONSIDERATION
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
September 16, 2016, Plaintiff Eric Eggelston initiated the
above-captioned action by filing his complaint against his
former employer, Defendant Nexteer Automotive Corporation,
and his former local union, United Automobile Aerospace and
Agricultural Implement Workers of America, Local 699
(“Local 699” or “the
Union”). In his complaint Plaintiff alleges that
Defendant Nexteer wrongfully terminated him from his A-bucket
position in retaliation for his exercise of his rights under
the Family Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2601, et seq, because of his race in
violation of Title VII, 42 U.S.C. § 2000e-2(a)(1), the
Michigan's Elliott-Larsen Civil Rights Act
(“ELCRA”), M.C.L. 37.2202, and in retaliation for
opposing a violation of ELCRA in violation of MCL 37.201(a).
Defendant Nexteer (hereinafter “Defendant”) moved
for summary judgment on December 21, 2017. On April 4, 2018,
the Court entered an opinion and order denying
Defendant's motion for summary judgment. ECF No. 39.
Court found that there was a question of fact as to whether
Defendant terminated and then failed to rehire Plaintiff
because of his race and not because he stole food from a
market. Specifically, the Court noted that Mr. Pruitt decided
to rehire Mr. Leger (Plaintiff's Caucasian counterpart)
because Mr. Pruitt determined that Mr. Leger did not commit
theft. Id. at 19-23. However, Mr. Pruitt could not
explain how this determination was made. Id.
Furthermore, Mr. Pruitt's testimony that he concluded Mr.
Leger did not commit theft was undermined by the fact that
Mr. Leger was reinstated pursuant to a “last chance
agreement, ” which was inconsistent with the notion
that Mr. Leger was innocent of the theft accusation.
now moves for reconsideration pursuant to Federal Rule of
Civil Procedure 60(b). ECF No. 43. Defendant obtained
additional evidence from Plaintiff in response to
supplemental discovery requests served on April 18. Defendant
sought supplemental responses to certain requests for
production, including request number 5 which sought
“all documents that support or refute [Plaintiff's]
allegations that Nexteer retaliated against [Plaintiff] in
any way.” Id. Ex. C, ECF No. 43-4. In response
to the supplemental request, Plaintiff produced a number of
affidavits, including an affidavit from Greg Leger, which
contained some additional information concerning the
circumstances surrounding Mr. Leger's termination and
reinstatement. Defendant contends that this affidavit, dated
December 11, 2017, should have been produced earlier, and
that Plaintiff wrongfully withheld it in an attempt to
manufacture a fact issue for trial.
titles its motion as a motion for reconsideration, yet moves
pursuant to Rule 60(b)(2) of the Federal Rules of Civil
Procedure. Rule 60(b)(2) provides that “on motion and
just terms, the court may relieve a party or its legal
representative from a final judgment, order, or
proceeding” based on “newly discovered
evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under rule
59(b).” Fed.R.Civ.P. 60(b)(2) (emphasis added).
Notably, rule 60(b) applies to final judgments and
orders, and not to interlocutory judgments or orders.
State National Insurance Company v. County of
Camden, 824 F.3d 399, 406 (3d Cir. 2016) (Rule 60(b)
improperly invoked when judgment in question was
interlocutory). Denial of summary judgment is generally not
appealable and is not considered a final judgment or order.
Ortiz v. Jordan, 562 U.S. 180 (2011); Hearring
v. Sliwowski, 712 F.3d 275, 279 (6th Cir. 2013). There
are limited exceptions to this general rule which are not
applicable here, such as an appeal of an order denying
summary judgment based on qualified immunity in an action
brought pursuant to 42 U.S.C. § 1983. Hearring v.
Sliwowski, 712 F.3d 275, 279 (6th Cir. 2013).
the Court's order denying Defendant's motion for
summary judgment is not a final order or judgment, and rule
60(b)(2) is therefore inapplicable. Indeed, no decision has
been rendered in this case which would prohibit Defendant
from supporting its defense at trial with this newly
Rule 7.1(h), on the other hand, governs motions for
reconsideration. A party can file a motion for
reconsideration of a previous order, but must do so within
fourteen days. A motion for reconsideration will be granted
if the moving party shows: “(1) a palpable defect, (2)
the defect misled the court and the parties, and (3) that
correcting the defect will result in a different disposition
of the case.” Michigan Dept. of Treasury v.
Michalec, 181 F.Supp.2d 731, 733-34 (E.D. Mich. 2002)
(quoting E.D. Mich. LR 7.1(g)(3)). A “palpable
defect” is “obvious, clear, unmistakable,
manifest, or plain.” Id. at 734 (citing
Marketing Displays, Inc. v. Traffix Devices, Inc.,
971 F.Supp.2d 262, 278 (E.D. Mich. 1997)). “[T]he 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.” E.D.
Mich. L.R. 7.1(h)(3). See also Bowens v. Terris,
2015 WL 3441531, at *1 (E.D. Mich. May 28, 2015). A party may
seek reconsideration based on: 1) a clear error of law, 2)
newly discovered evidence that was not previously available
to the parties, or 3) an intervening change in the
controlling law. White v. Mortg. Elec. Registration Sys.,
Inc., 2006 WL 2130507, at *1 (E.D. Mich. July 28, 2006).
the instant motion was not filed until 30 days after the
entry of the order in question, the motion is nonetheless
timely as the new evidence was not discovered until Plaintiff
produced it on April 30, 2018. Defendant filed the instant
motion five days later. Nevertheless, the motion will be
denied for two reasons.
although the affidavit of Mr. Leger is technically
“newly discovered evidence, ” Defendant has not
explained why this evidence was not previously available to
it. Irrespective of whether Plaintiff was under a duty to
produce this document when it came into Plaintiff's
possession, there does not appear to be any reason why
Defendant could not have obtained this information from Mr.
Leger. To the extent Defendant believes Mr. Leger's
explanation for his termination and reinstatement is material
to its defense, it could have sought this information from
Mr. Leger. Defendant has never apprised the Court of any
unsuccessful attempt at obtaining this information from Mr.
Mr. Leger's affidavit would not have changed the outcome
of the Court's order denying Defendant's motion for
summary judgment. Mr. Leger explains as follows in the
1. I have personal knowledge of the facts set forth in this
affidavit and if called upon to testify to these facts, I
would do so truthfully 2. I was tasked with changing the deep
fryer filters at the plant 3 facility in all the ...