UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

WALLACE SALES & 

CONSULTING, LLC, 

 

 Plaintiff, 

 

v. 

 Case No.: 2:15-cv-10748 

Honorable Gershwin A. Drain

TUOPU NORTH AMERICA, 

LIMITED, 

 

 Defendant. 

___________________________/ 

 

ORDER DENYING DEFENDANT TUOPU NORTH AMERICA 

LIMITED’S MOTION FOR RECONSIDERATION [#101] 

 On October 3, 2016, this Court entered an Order denying 

Defendant/Counter-Plaintiff Tuopu North America’s (“TNA”) Motion to Amend 

its Counter-Complaint and Implead James Wallace (“Wallace”) as a Third Party 

Defendant. See Dkt. No. 97. The Court denied TNA’s Motion to Amend its 

Counter-Complaint because of TNA’s undue delay in requesting the amendment 

and the significant prejudice that Plaintiff Wallace Sales & Consulting, LLC 

(“WSC”) and Wallace would suffer if an amendment were granted at such a late 

stage in the litigation. Lastly, the Court also found that TNA’s proposed 

2:15-cv-10748-GAD-DRG Doc # 112 Filed 11/04/16 Pg 1 of 7 Pg ID 3006
2

counterclaims were futile because they were barred by the applicable statute of 

limitations, among other reasons. 

 Presently before the Court is TNA’s Motion for Reconsideration, filed on 

October 17, 2016. TNA argues that this Court must reconsider its decision denying 

its request for an amendment because the proposed claims are valid and brought 

well within the statute of limitations. TNA also disputes this Court’s conclusion 

that WSC and Wallace will be substantially prejudiced by an amendment. Upon 

consideration of the arguments presented by TNA, the Court will deny its Motion 

for Reconsideration. 

 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, 

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 

2:15-cv-10748-GAD-DRG Doc # 112 Filed 11/04/16 Pg 2 of 7 Pg ID 3007
3

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)). 

 TNA first argues that the applicable statute of limitations does not bar its 

claims because Wallace concealed “his fraud throughout Plaintiff’s entire 

relationship with Tuopu.” Mot. Recon. at 4. However, a review of TNA’s 

proposed amended Counter-Complaint reveals that there are no allegations 

supporting a claim for fraudulent concealment. Michigan Compiled Laws § 

600.5855 states in relevant part: 

If a person who is or may be liable for any claim fraudulently 

conceals the existence of the claim . . . from the knowledge of the 

person entitled to sue on the claim, the action may be commenced at 

any time within 2 years after the person who is entitled to bring the 

action discovers, or should have discovered, the existence of the claim 

. . . although the action would otherwise be barred by the period of 

limitations. 

MICH. COMP. LAWS § 600.5855 (emphasis supplied). The elements of fraudulent 

concealment are: “(1) wrongful concealment of his actions by the defendant; (2) 

failure of the plaintiff to discover the operative facts that are the basis of his cause 

of action within the limitations period; and (3) plaintiff’s due diligence until 

discovery of the facts.” Evans v. Pearson Enterprises, Inc., 434 F.3d 839, 851 (6th 

Cir. 2006). 

2:15-cv-10748-GAD-DRG Doc # 112 Filed 11/04/16 Pg 3 of 7 Pg ID 3008
4

 TNA’s proposed counterclaim is devoid of any facts suggesting it exercised 

due diligence before its discovery of the alleged fraud. It apparently failed to 

confirm Wallace’s degree from Lawrence Technological University. Nor did it 

contact any of Wallace’s previous employers to ascertain whether those positions 

required a mechanical engineering degree. Rather, it seems that TNA equates 

fraudulent concealment with “confidently approach[ing] Tuopu as an experienced 

candidate who held jobs that seemed to require an engineering degree.” Mot. 

Recon. at 5. Even if these facts amounted to fraudulent concealment, which they 

do not, these allegations are absent from TNA’s proposed Counter-Complaint. 

 TNA’s discussion of resume fraud and the “after-acquired evidence” 

doctrine should have been raised during its original briefing on this issue. A 

motion to reconsider “is not properly used as a vehicle to . . . advance positions 

that could have been argued earlier but were not.” Mount Pleasant Pub. Sch., 298 

F. Supp. at 637. The “after-acquired evidence” doctrine is used when a plaintiff 

brings an unlawful discharge lawsuit and “the defendant finds evidence of 

wrongdoing, such as resume fraud, such that the defendant would have either fired 

or failed to hire the plaintiff had it found the evidence earlier.” Moos v. Square D. 

Co., 72 F.3d 39, 43 (6th Cir. 1995). In any event, application of the after-acquired 

evidence doctrine to this case is misplaced pursuant to McKennon v. Nashville 

Publishing Co., 513 U.S. 352 (1995), which limited the doctrine’s application. 

2:15-cv-10748-GAD-DRG Doc # 112 Filed 11/04/16 Pg 4 of 7 Pg ID 3009
5

Under McKennon, wrongfully discharged employees cannot obtain certain 

remedies such as reinstatement or front pay, but may receive back pay. Id. As 

such, the after-acquired evidence doctrine is inapplicable here since WSC is not 

seeking reinstatement or front pay. 

 Accordingly, TNA cannot rely on purported fraudulent concealment to avoid 

the statute of limitations bar to its proposed fraud based claims. Wallace sent his 

resume eleven years prior to TNA seeking to sue on its claim. Similarly, the 

parties’ contractual relationship began nine years before TNA’s proposed 

amendment. Both dates are well beyond the applicable six year statute of 

limitations for fraud claims. MICH. COMP. LAWS § 600.5813. Therefore, TNA 

fails to demonstrate a palpable defect the correction of which will result in a 

different disposition concerning the futility of TNA’s fraud based claims. 

Moreover, even if TNA’s claims were not barred by the applicable statute of 

limitations, leave to amend was properly denied based on TNA’s undue delay and 

the substantial prejudice to WSC and Wallace that would inevitably result from an 

amendment at this late stage in the litigation. TNA waited eight months between 

discovering Wallace did not have an engineering degree and moving for an 

amendment to its Counter-Complaint. At the time TNA filed its motion to amend, 

discovery cut-off had been extended four times and it was set to expire in a little 

more than thirty days. As such, resolution of TNA’s motion would not occur prior 

2:15-cv-10748-GAD-DRG Doc # 112 Filed 11/04/16 Pg 5 of 7 Pg ID 3010
6

to the expiration of the discovery cut-off. This Court’s scheduling order states in 

relevant part: “Discovery shall be completed on or before the date set forth in the 

scheduling order. The court will not order discovery to take place subsequent to 

the discovery cutoff date.” Dkt. No. 61 at 2. Thus, this Court did not commit 

palpable error when it concluded TNA cannot demonstrate it timely moved for the 

amendment to its counterclaim. 

Lastly, TNA continues to argue that WSC and Wallace will not suffer 

substantial prejudice if an amendment is granted. These arguments have already 

been considered and rejected by this Court. TNA seeks to bring six new claims 

against either WSC or Wallace or both. These claims stem from different theories 

as those that have been present from the outset of this matter. As such, WSC and 

Wallace will have to re-depose at least two individuals and depose up to six more 

individuals, as well as serve additional discovery requests. Prejudice is not merely 

a “possibility” as TNA claims, but a reality. 

For the foregoing reasons, TNA’s Motion for Reconsideration [#101] is 

DENIED. 

 SO ORDERED. 

Dated: November 4, 2016 /s/Gershwin A. Drain 

 GERSHWIN A. DRAIN 

 United States District Judge 

2:15-cv-10748-GAD-DRG Doc # 112 Filed 11/04/16 Pg 6 of 7 Pg ID 3011
7

CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record on 

November 4, 2016, by electronic and/or ordinary mail. 

/s/ Tanya Bankston 

Deputy Clerk

2:15-cv-10748-GAD-DRG Doc # 112 Filed 11/04/16 Pg 7 of 7 Pg ID 3012