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Kerber v. Wayne Count Employees Retirement System

United States District Court, E.D. Michigan, Southern Division

April 25, 2019

Daniel Kerber and Sheila Kerber, Plaintiffs,
v.
Wayne County Employees Retirement System, et al., Defendants.

          R. Steven Whalen U.S. Magistrate Judge

          ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION [52]

          Arthur J. Tarnow Senior United States District Judge

         Plaintiffs brought this suit under 42 U.S.C. § 1983 and Michigan state law to restore Daniel Kerber's pension benefits. They seek compensation for the decisions by the Wayne County Employees Retirement System (“WCERS”) to cut off his pension, and the decision by the Wayne County Prosecutor's Office's (“WCPO”) to prosecute him for his partial withdrawal of his pension funds. On March 26, 2019, the Court denied their motion for a preliminary injunction, granted the WCPO defendants' motion to dismiss in its entirety, and granted in part and denied in part the WCERS defendants' motion to dismiss. [Dkt. # 50].

         Legal Standard

         Plaintiffs move the Court to reconsider its March 26 Order. The Local Rules for the Eastern District of Michigan provide as follows.

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.

L.R. 7.1(h)(3).

         “A palpable defect is a defect which is obvious, clear, unmistakable, manifest or plain.” Fleck v. Titan Tire Corp., 177 F.Supp.2d 605, 624 (E.D. Mich. 2001) (internal citations and quotations omitted).

         Analysis

         Plaintiffs argue that the Court's reasoning was plagued with several palpable defects. First, they argue that a preliminary injunction is warranted. They contend that the Court misevaluated the irreparable harm prong of the preliminary injunction analysis and misconstrued Mr. Kerber's severance agreement. Second, they argue that the WCPO Defendants should not have been dismissed. They focus on evidence that WCPO defendants were sufficiently involved in the decision to terminate Mr. Kerber's pension benefits, and that Defendant Kim Worthy does not have absolute immunity for her statements to the press. For the reasons below, the motion will be denied in its entirety.

         I. Preliminary Injunction

         a. Irreparable

         Harm A plaintiff seeking a preliminary injunction must demonstrate “that he is likely to suffer irreparable harm in the absence of preliminary relief.” Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). Plaintiffs oppose the Court's holding that Mr. Kerber cannot establish a likelihood of irreparable harm for a delay in his “purely monetary” relief. This holding was guided by precedent that “income wrongly withheld may be recovered through monetary damages in the form of back pay.” (Dkt. 50 pg. 8-9 (citing Overstreet v. Lexington-Fayette Urban County Gov't, 305 F.3d 566, 579, (6th Cir. 2002)). Overstreet is binding, whereas Golden v. Kelsey-Hayes Co., 845 F.Supp. 410 (E.D. Mich. 1994) (which Plaintiffs did not cite in their original motion) is only persuasive. Moreover, the two cases do not even reach contradictory holdings. A pensioner could establish a likelihood of irreparable harm from the loss of his pension if the effects of his financial ...


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