United States District Court, E.D. Michigan, Southern Division
K. Majzoub Mag. Judge.
OPINION AND ORDER GRANTING MOTION FOR RECONSIDERATION
E. Levy United States District Judge.
October 9, 2019, Plaintiff Alaa Saade filed a motion for
reconsideration of the Court's September 24, 2019 order.
This motion for reconsideration would not have been necessary
but for Plaintiff's counsel's failure to effectuate
service on now-terminated defendants Timothy Goodman and Sean
Larkins before the deadline passed, failure to seek leave for
alternative service before the deadline for service passed,
and failure to show cause as to why the case should not be
dismissed against Goodman and Larkins before the
Court-ordered deadline passed.
background, Goodman and Larkins had not been served by the
original deadline, so the Court issued an order that
Plaintiff show cause why this case against Goodman and
Larkins should not be dismissed. (ECF No. 7.) In a timely
response, Plaintiff asked the Court to allow Goodman and
Larkins to be served by alternative means but failed to set
forth the proper standard for such a request. (ECF No. 8.)
Despite this, rather than dismiss the case against Goodman
and Larkins for failure to show cause, the Court gave
Plaintiff another opportunity to set forth the proper reasons
for the alternative service request. (ECF No. 10.)
Plaintiff's response to that order was due on September
23, 2019, but Plaintiff did not respond. (Id.)
Accordingly, Goodman and Larkins were dismissed without
prejudice on September 24, 2019.
Plaintiff seeks reconsideration of the Court's order
dismissing Goodman and Larkins. Notably, Plaintiff's
counsel filed the motion a day late. Under Eastern District
of Michigan Local Rule 7.1(h), motions for reconsideration
“must be filed within 14 days after entry of the . . .
order.” The deadline for filing a motion for
reconsideration was October 8, 2019.
Plaintiff's motion does not set forth the standard for
motions for reconsideration. To prevail on a motion for
reconsideration under Eastern District of Michigan 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 Federal
Rule of Civil Procedure 59(e), that 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.” Henderson v. Walled
Lake Consol. Schs., 469 F.3d 479, 496 (6th Cir. 2006).
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), or if the “parties 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).
Plaintiff does not present the motion in this way, the Court
construes it as one seeking to prevent a manifest injustice.
The substance of Plaintiff's motion is essentially to
inform the Court that both Goodman and Larkins were served
before they had been dismissed. Under Federal Rule of Civil
Procedure 4(e)(1) (which incorporates Michigan Court Rule
2.105) both Goodman and Larkins received a copy of the
summons and complaint via certified mail with a return
receipt requested on September 17, and 18, 2019,
respectively. Both dates were before the Court's
September 23, 2019 deadline. Yet, Plaintiff's counsel did
not file the summons returned executed or certificate of
service, or otherwise notify the Court that service had been
effectuated. Had she done so, Goodman and Larkins would not
have been dismissed.
and Larkins were also personally served by a process server
on September 25, 2019 under Federal Rule of Civil Procedure
4(e)(2). While this was two days after the September 23, 2019
supplemental show cause deadline, Plaintiff's counsel
still could have notified the Court before the deadline that
service was imminent, and with the proper showing, this could
have prevented Goodman and Larkins' dismissal.
counsel has demonstrated a pattern of missed deadlines and
failure to set forth and follow the applicable rules.
Generally, clients must be held accountable for the acts and
omissions of their attorneys. See Link v. Wabash R.
Co., 370 U.S. 626, 633 (1962) (upholding dismissal of a
lawsuit because of an attorney's failure to attend a
scheduled pretrial conference). Accordingly, under the
general rule, Plaintiff would be required to re-file the case
against Goodman and Larkins.
district courts also have broad discretion over their
dockets. See In re Univ. Of Mich., 936 F.3d 460 (6th
Cir. 2019) (“[T]he modern federal district judge faces
a challenge-she must balance administering just and lawful
outcomes with the need to move cases along. That means she
must be both a fair and impartial adjudicator and a
conscientious and capable manager. The district judge's
job is not an easy one. But the Federal Rules of Civil
Procedure provide tools to manage a busy docket[.]”)
Service on Goodman and Larkins was in fact effectuated before
the September 23, 2019 deadline, and the only reason they
were dismissed was due to counsel's failure to notify the
Court of this event before the deadline. As such, Goodman and
Larkins will be reinstated. The Court will not presume that
bad faith is involved absent such a showing. In sum, for
reasons of fairness and efficiency counsel's error will
not be attributed to Plaintiff.
reasons set forth above, Timothy Goodman and Sean Larkins are
reinstated as defendants in this matter. Plaintiff's
counsel is ordered to file the certificates of service for
these defendants without delay and all parties are reminded