United States District Court, E.D. Michigan, Southern Division
THE ESTATE OF JOANN MATOUK ROMAIN and MICHELLE MARIE ROMAIN, in her personal representative capacity of the Estate, Plaintiff,
THE CITY OF GROSSE POINTE FARMS, DANIEL JENSEN, JACK PATTERSON, ANDREW ROGERS, RICHARD A. ROSATI, MICHAEL MCCARTHY, KEITH COLOMBO, ANTONIO TRUPIANO, JOHN WALKO, FRANK ZIELINSKI, RICKY GOOD, THE CITY OF GROSSE POINTE WOODS, ANDREW PAZUCHOWSKI, JOHN KOSANKE, JOHN ROSS, KEITH WASZAK, ANTHONY CHALUT, OFFICER JOHN DOE, TIMOTHY J. MATOUK, JOHN DOE, and KILLER JOHN DOE, Defendants.
OPINION AND ORDER DENYING THE GROSSE POINTE FARMS
DEFENDANTS' MOTION FOR RECONSIDERATION OF DENIAL OF COSTS
AND ATTORNEY FEES (ECF NO. 324) AND MOTION TO ALTER OR AMEND
JUDGMENT (ECF NO. 328)
V. PARKER U.S. DISTRICT JUDGE
filed this civil rights action on June 10, 2014, contending
that Defendants conspired to conceal the identity of the
individual responsible for the disappearance and death of
their decedent, Joann Matouk Romain. Subsequently, Defendants
filed motions for summary judgment, which this Court granted
in an opinion and order issued March 7, 2018. (ECF No. 322.)
The matter presently is before the Court on two motions filed
by the “Grosse Pointe Farms
Defendants”: (1) a motion for reconsideration pursuant
to Eastern District of Michigan Local Rule 7.1(h)(3), filed
March 20, 2018 (ECF No. 324); and (2) a motion to amend or
correct the judgment pursuant to Rule 59(e) of the Federal
Rules of Civil Procedure, filed March 22, 2018 (ECF No. 328).
For the reasons that follow, the Court denies the motions.
Grosse Pointe Farms Defendants concluded their brief in
support of their summary judgment motion, filed February 3,
2017, as follows:
For the reasons stated, the GPF Defendants request entry of
[s]ummary [j]udgment, pursuant to [Federal Rule of Civil
Procedure] 56, on Counts II-V of Plaintiffs['] Second
Amended Complaint, and include an award of actual costs
and attorney fees.
(Defs.' Br. at 39, ECF No. 280 at Pg ID 5247, emphasis
added.) This was the first and only time the Grosse Pointe
Defendants mentioned their entitlement to an award of costs
or attorney's fees in their summary judgment motion and
brief. As such, they never cited a statute or rule in support
of their request, argued why they were entitled to an award,
or set forth the amount sought.
hearing on Defendants' summary judgment motions, counsel
for the Grosse Pointe Farms Defendants renewed their request
for costs, only, stating simply initially: “We
would ask this Court to grant summary judgment on all of the
claims and award us costs.” (2/20/18 Hr'g Tr. at
16, ECF No. 337 at Pg ID 8083.) On rebuttal, counsel for the
Grosse Pointe Farms Defendants closed stating: “Once
again, we would ask that the Court end this, frankly, mockery
of justice, grant summary judgment to the defendants and
award us costs.” (Id. at 67, Pg ID 8134.) As
such, and contrary to their current assertion, the Grosse
Pointe Farms Defendants never “[a]t … oral
argument … expressly reserved the right, as prevailing
parties, to document entitlement to an award …
pursuant to 42 U.S.C. § 1988 and 28 U.S.C. §
1927.” (Mot. ¶ 2, ECF No. 328 at Pg ID 7972.) The
Court denied the request for fees and costs in its March 7,
2018 decision, explaining: “[T]he Court finds
Plaintiff's pursuit of this lawsuit meritorious and is
therefore denying Defendants' request for attorneys'
fees and costs.” (Op. and Order at 58, ECF No. 322 at
Pg ID 7737.)
Grosse Pointe Farms Defendants argue in their pending motion
that the Court erred in denying their request for
attorneys' fees and costs. They contend that they were
entitled to an award under 42 U.S.C. § 1988 and 28
U.S.C. § 1927. The Grosse Pointe Farms Defendants now
ask the Court to award them over $12, 500 in costs and over
$380, 000 in attorney's fees.
Rule 7.1(h) provides that a motion for reconsideration only
should be granted if the movant demonstrates that the Court
and the parties have been misled by a palpable defect and a
different disposition of the case would result from a
correction of such defect. E.D. Mich. LR 7.1(h)(3). Palpable
defects are those which are “obvious, clear,
unmistakable, manifest or plain.” Mich. Dep't
of Treasury v. Michalec, 181 F.Supp.2d 731, 734 (E.D.
Mich. 2002). “It is an exception to the norm for the
Court to grant a motion for reconsideration.”
Maiberger v. City of Livonia, 724 F.Supp.2d 759, 780
(E.D. Mich. 2010). “[A] motion for reconsideration is
not properly used as a vehicle to re-hash old arguments or to
advance positions that could have been argued earlier but
were not.” Smith v. Mount Pleasant Pub. Sch.,
298 F.Supp.2d 636, 637 (E.D. Mich. 2003) (citing Sault
Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d
367, 374 (6th Cir.1998)).
to alter or amend judgment pursuant to Rule 59(e) may be
granted only if there is a clear error of law, newly
discovered evidence, an intervening change in controlling
law, or to prevent manifest injustice. Gencorp., Inc. v.
Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir.
1999). One district court in this circuit has aptly described
the concept of “manifest injustice” as follows:
As applied to Rule 59(e), no general definition of manifest
injustice has ever been developed; courts instead look at the
matter on a case-by-case basis. Torre v. Federated Mutual
Ins. Co., 906 F.Supp. 616, 619 (D.Kan. 1995)
(unsubstantiated assertion could not lead to a finding of
manifest injustice); Attorney Registration &
Disciplinary Com. of Supreme Court v. Betts, 157 B.R.
631 (Bankr. N.D.Ill. 1993) (mere disagreement with
court's findings does not rise to level of manifest
injustice). What is clear from case law, and from a natural
reading of the term itself, is that a showing of manifest
injustice requires that there exist a fundamental flaw in the
court's decision that without correction would lead to a
result that is both inequitable and not in line with
McDaniel v. Am. Gen. Fin. Servs., Inc., No.
04-2667B, 2007 WL 2084277, at *2 (W.D. Tenn. July 17, 2007)
(unpublished). The Sixth Circuit has advised that
“manifest injustice” is not meant to allow a
disappointed litigant to ‘correct what has-in
hindsight-turned out to be a poor strategic decision.”
Gencorp., 178 F.3d at 834. The Sixth Circuit has
further advised generally with respect to Rule 59(e) that it
“permits a court to alter or amend a judgment, but it
‘may not be used to relitigate old matters, or to raise
arguments or present evidence that could have been raised
prior to the entry of judgment.'” Exxon
Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008)
(citing 11 C. Wright & A. Miller, Federal Practice and
Procedure § 2810.1, 127-28 (2d ed. 1995)).
Grosse Pointe Farms Defendants fail to demonstrate a palpable
defect or a clear error of law in the Court's earlier
decision to deny them an award of costs and attorney's
fees. They also fail to show that an amendment or alteration
is necessary to prevent manifest injustice. That is because
in their initial motion, the Grosse Pointe Farms Defendants
made only a passing reference to their request for an award
of their costs and attorney's fees. They asserted no
argument for why they were entitled to an award and,
importantly, did not cite the rule or statute on which they
were relying for their request. “It is not sufficient
for a party to mention a possible argument in a most skeletal
way, leaving the court to put flesh on its bones.”
Meridia Prods. Liability Litig. v. Abbott Labs., 447
F.3d 861, 868 (6th Cir. 2006) (quoting McPherson v.
Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)).
Additionally, “[i]t is well-established that
‘issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.'” Dillery v. City of
Sandusky, 398 F.3d 562, 569 (6th Cir. 2005) (quoting
United States v. Layne, 192 F.3d 556, 566 (6th Cir.
1999)) (additional citation omitted).
these circumstances, the Grosse Pointe Farms Defendants
cannot demonstrate that the Court committed a “palpable
defect” or “clear error of law” in failing
to award them attorney's fees or costs under §§
1927 or 1988. In short, they are not entitled to relief under
Local Rule 7.1(h)(3) or Federal Rule of Civil Procedure
IT IS ORDERED that the Grosse Pointe Farms
Defendants' Motion for Reconsideration (ECF No. 324) and
Motion to Alter ...