UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

TRUSTEES OF THE LABORERS 

PENSION FUND-DETROIT & 

VICINITY; et al., 

 

 Plaintiffs, 

 

v. 

 Case No.: 14-14000 

Honorable Gershwin A. Drain

PG SIMON ON SITE INC., 

 

 Defendant. 

___________________________/ 

 

ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION 

[#19] 

I. Introduction 

 Presently before the Court is the Defendant’s Motion for Reconsideration, 

filed on February 15, 2017. Defendant seeks reconsideration of an Order entered 

on January 9, 2017 by the district judge who previously presided over the instant 

matter. Specifically, Judge Gerald Rosen entered an Order granting the Plaintiffs’ 

Motion for Amended Judgment and awarded Plaintiffs the total sum of $65,078.52, 

consisting of delinquent fringe benefit contributions of $59,171.55, $5,574.28 in 

liquidated damages resulting from Plaintiffs’ third party vendor audit, and $332.69 

in liquidated damages resulting from late payments, plus interest, costs and 

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attorney fees pursuant to 29 U.S.C. § 1132(g)(2). Defendant claims that the audit 

report, upon which Judge Rosen’s January 9, 2017 Order relies, is inaccurate in 

several respects. 

 This matter was reassigned to the undersigned on February 1, 2017. On 

February 9, 2017, this Court entered an order requiring additional briefing on 

Defendant’s Motion for Reconsideration. Accordingly, on February 15, 2017, 

Plaintiffs filed their Response to Defendant’s Motion for Reconsideration. 

Defendant filed a Reply in support of its Motion for Reconsideration on February 

22, 2017. Upon review and consideration of the parties’ submissions, the Court 

will deny Defendant’s Motion for Reconsideration. 

II. Background 

 The Plaintiffs are the Trustees of the Detroit Laborers’ Fringe Benefit Funds. 

They filed the instant action seeking to compel an audit and recover unpaid fringe 

benefit contributions owed to the funds for work performed by its laborer 

employees pursuant to collective bargaining agreements. A subsequent audit by 

Kem Whatley revealed that Defendant’s indebtedness to the funds for the 

applicable period was $65,078.52, consisting of $59,171.55 in contributions, 

$5,574.28 in liquidated damages resulting from the audit, and $332.69 in liquidated 

damages resulting from late payments. When Defendant did not pay the funds in 

accordance with the audit results, Plaintiffs filed a Motion for Amended Judgment. 

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Defendant responded to the Plaintiffs’ Motion for Amended Judgment and argued 

that Mr. Whatley’s audit was inaccurate. However, Defendant failed to provide 

any evidence in support of its contention that the audit contained errors. 

 On January 9, 2017, Judge Rosen issued his Order Granting the Plaintiffs’ 

Motion for Amended Judgment. In rejecting the Defendant’s argument that the 

audit was inaccurate, Judge Rosen stated that “[u]nsupported claims of inaccuracy 

are insufficient to rebut the validity of the audit. . . . Since Defendant here has 

provided no documentary evidence of any kind to establish that the auditor’s 

conclusion is incorrect, it has failed to meet its burden of rebutting the validity of 

the audit. Therefore, pursuant to the terms of the Consent Judgment entered in this 

case on April 3, 2015, the Court will enter an Amended Judgment in accordance 

with the audit results.” See Dkt. No. 15 at 4-5. 

III. Law & Analysis 

 Local Rule 7.1(h)(3) of the Local Rules of the United States District Court 

for the Eastern District of Michigan provides: 

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. 

E.D. Mich. L.R. 7.1(h)(3). “A ‘palpable defect’ is ‘a defect that is obvious, clear, 

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unmistakable, manifest, or plain.’” United States v. Lockett, 328 F. Supp. 2d 682, 

684 (E.D. Mich. 2004) (citing United States v. Cican, 156 F. Supp. 2d 661, 668 

(E.D. Mich. 2001)). “[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 ex rel. 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)). 

 Here, Defendant has failed to establish a palpable defect by which the Court 

and the parties have been misled. Defendant’s present motion merely re-raises 

arguments that have already been reviewed and rejected by this Court. Defendant 

reasserts that Mr. Whatley’s audit was inaccurate. In support, Defendant provides 

the affidavit of Defendant’s owner, Philip Simon. However, it is inappropriate for 

the Court to consider an affidavit that should have been filed in support of 

Defendant’s response in opposition to the Plaintiffs’ Motion for Amended 

Judgment. 

 Moreover, even if Mr. Simon’s affidavit was properly before the Court, it 

would not change the result. Mr. Simon’s affidavit fails to address the fact that 

contributions for the months of January through September of 2012 have not been 

paid to the funds. Nor has Defendant submitted any documentary evidence 

establishing that these contributions have been paid. Additionally, Defendant is 

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incorrect in claiming that the Laborers Specialized Services Agreement governs 

the contribution payments owed to the funds. The Laborers Specialized Services 

Agreement expired on April 1, 2010, which was before the period covering the 

audit. The governing agreement-the Specialized Coatings Agreement-became 

effective November 1, 2011. Thus, the Specialized Coatings Agreement was 

properly relied upon by Mr. Whatley in calculating the amounts owed to the funds 

beginning in January of 2012. 

IV. Conclusion 

 Accordingly, Defendant’s Motion for Reconsideration [#16] is DENIED. 

 SO ORDERED. 

Dated: April 4, 2017 /s/Gershwin A. Drain 

 GERSHWIN A. DRAIN 

 United States District Judge 

CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record on 

April 4, 2017, by electronic and/or ordinary mail. 

/s/ Tanya Bankston 

Deputy Clerk

 

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