United States District Court, E.D. Michigan, Southern Division
STEVEN WHALEN MAG. JUDGE
ORDER REGARDING MOTION FOR RECONSIDERATION AND
REQUIRING ADDITIONAL BRIEFING 
E. LEVY UNITED STATES DISTRICT JUDGE
case is before the Court on third-party defendant Gentry
Mills, Inc.'s (“GMI”) motion for
reconsideration. GMI asks the Court to reconsider its
decision allowing defendant/third-party plaintiff Innovative
Textiles, Inc. (“ITI”) to file an amended
third-party complaint after dismissing ITI's previous
third-party complaint. GMI alleges that the Court erred in
its decision because ITI already had a chance to amend, filed
its amendment without good cause, and, regardless, the
amendment would be futile.
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 argues that ITI already had a chance to amend its
complaint because GMI's motion to dismiss made ITI aware
of the deficiencies in its complaint.
a more carefully drafted complaint might state a claim, a
plaintiff must be given at least one chance to amend the
complaint before the district court dismisses the action with
prejudice.” U.S. ex rel. Bledsoe v. Cmty. Health
Sys., Inc., 342 F.3d 634, 644 (6th Cir. 2003). A
plaintiff had a “chance to amend the complaint”
if it had (1) “sufficient notice that . . . [the]
complaint was deficient, ” and, (2) “if so . . .
an adequate opportunity to cure the deficiencies.”
plaintiff did not have sufficient notice the complaint was
deficient until after GMI's motion to dismiss was
granted. Though the Court granted the motion to dismiss, ITI
vigorously litigated the motion, and represented to the Court
that it believed its complaint was not deficient. Because an
opposing party in litigation presents an argument as to why
its position is superior the other party is not required to
then concede and abandon its own position. It was reasonable
for ITI to litigate the motion and await a Court order prior
to making any amendments.
next argues that ITI did not demonstrate good cause for
failing to amend the third-party complaint within the
timeframe for amended pleadings set by the scheduling order.
leave to amend a complaint after the scheduling order's
deadline implicates two Federal Rules of Civil Procedure,
Rule 15 and Rule 16.” Carrizo (Utica) LLC v. City
of Girard, Ohio, 661 Fed.Appx. 364, 367 (6th Cir. 2016).
“Notwithstanding Rule 15's directive freely to give
leave to amend, a party seeking leave to amend after the
scheduling order's deadline must meet Rule 16's
good-cause standard in order for the district court to amend
the scheduling order.” Id.
had good cause for failing to meet the deadline for amended
pleadings in the scheduling order because the Court did not
rule on the motion to dismiss that complaint until after the
scheduling order's deadline passed.
last argument is that the amendment would be futile. Because
this argument is complex and potentially dispositive, the
Court requires additional briefing. ITI is ORDERED to respond
to GMI's motion for reconsideration, but only as to the
argument that amendment is futile. Briefing will proceed on
the schedule set by Local Rule 7.1(e)(1). ITI shall file its
response no later than close ...