Opinion
Civil Case No. 03-40116.
October 21, 2004
ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION AND ORDER OF CONDITIONAL DISMISSAL WITHOUT PREJUDICE
Before the Court is Plaintiffs' "Motion for Reconsideration of July 14, 2004 Order Granting Defendants' [sic] Motion for Summary Judgment," accepted for filing on July 27, 2004. To properly adjudicate this motion, the Court ordered Defendant to respond to Plaintiffs' Motion for Reconsideration pursuant to the Eastern District of Michigan's Local Rule 7.1(g)(2). Defendant failed to file a response, in violation of this Court's order. The Court will therefore adjudicate this motion without the benefit of a response brief from Defendant.
On July 14, 2004, this Court granted Defendant's motion for summary judgment. Plaintiffs did not file a response to Defendant's motion. The Court determined that based on the reasoning in Defendant's brief and based on the Court's decision in a companion case, case 02-40170, the motion for summary judgment should be granted. The Court also entered judgment for Defendant.
Plaintiffs now request that the Court reconsider and vacate its order and judgment that dismissed this case on the merits and enter in its place an order dismissing this case without prejudice, subject to reinstatement only if this Court's order in case 02-40170 is reversed on appeal. The Court may only grant reconsideration in limited circumstances. To succeed on a motion for reconsideration "[t]he movant must not only demonstrate a palpable defect by which the court and the parties have been misled but also must show that correcting the defect will result in a different disposition of the case." E.D. Mich. Local R. 7.1(g)(3). A "palpable defect" is "a defect that is obvious, clear, unmistakable, manifest, or plain." United States v. Cican, 156 F. Supp. 2d 661, 668 (E.D. Mich. 2001) (Gadola, J.). Moreover, "the [C]ourt will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the [C]ourt, either expressly or by reasonable implication." E.D. Mich. Local R. 7.1(g)(3).
In this case, a palpable defect does exist because an understanding of the parties to stipulate to a conditional dismissal without prejudice prior to the Court's original order was never communicated to the Court. This failure of timely communication was apparently due to the retirement of an attorney involved in the case. The dismissal without prejudice would be a different outcome and would promote judicial efficiency on appeal and in this Court. Therefore, reconsideration of the Court's order is appropriate. For these reasons and because Defendant failed to respond to Plaintiffs' motion for reconsideration, the Court will grant Plaintiffs' request.
ACCORDINGLY, IT IS HEREBY ORDERED that Plaintiffs' motion for reconsideration [docket entry 27] is GRANTED. THEREFORE, IT IS FURTHER ORDERED that the Court's July 13, 2004 order [docket entry 25] and judgment [docket entry 26] are VACATED. IT IS FURTHER ORDERED that this case, 03-40116, is DISMISSED WITHOUT PREJUDICE, subject to reinstatement only if this Court's related order in companion case 02-40170 is reversed and only if Plaintiffs file a notice of reinstatement within sixty (60) days of issuance of a mandate in case 02-40170.
SO ORDERED.