UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DONALD J. WILLIAMSON,

Plaintiff,

Case No. 02-73238

v.

ICS INVESTMENTS, et al., Hon. John Corbett O’Meara

Defendants.

________________________________/

ORDER DENYING PLAINTIFF’S MOTION FOR ENTRY

OF CONSENT JUDGMENT AND/OR MOTION FOR 

RECONSIDERATION AND RELIEF FROM JUDGMENT

Before the court is Plaintiff’s Motion for Entry of Consent Judgment and/or Motion for

Reconsideration and Relief from Judgment, filed February 6, 2006. Defendant Roland Thomas

submitted a response on February 8, 2006. The court will decide this matter on the briefs and

without oral argument. See LR 7.1(e)(2). For the reasons set forth below, Plaintiff’s motion is

denied.

The parties settled this case in October 2005. Pursuant to the settlement agreement,

Defendant Roland Thomas was to pay $50,000 – $10,000 by December 30, 2005, and $40,000

by September 8, 2006. The agreement provided that if Thomas is “more than ten (10) days late

with respect to any payments set forth above,” then Plaintiff shall have a consent judgment

entered in the amount of $85,000 “plus costs of collection.” Ex. A. at 2-3. 

Thomas arranged for a loan to pay the first $10,000 installment. Due to the holidays, the

loan was not wire transferred to the Plaintiff’s law firm’s trust account until January 11, 2006. 

Plaintiff contends that the payment was late as of January 9, 2006, ten calendar days after

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December 30, 2005. On January 9, Plaintiff submitted the consent judgment to the court for

entry, and copied Defendant Thomas by regular mail. When Defendant received the consent

judgment, he faxed a letter on January 11 to the court requesting that it not be entered. The

consent judgment was entered on January 11, although it is not clear whether Defendant’s

correspondence had been received by the court prior to entry. 

Defendant Thomas then filed a motion to set aside the consent judgment and for

expedited consideration on January 18. Thomas argues that the agreement does not specify

whether the ten-day grace period was ten calendar days or ten business days as computed under

Fed. R. Civ. P. 6(a). According to Thomas, ten business days from December 30, 2005, given

the New Year’s holiday, is January 16. Thomas also claims that he did not receive three days

facsimile notice of the presentment of the consent judgment, as required by the settlement

agreement.

The court held a hearing on Thomas’s motion to set aside the consent judgment on

January 26. Plaintiff did not respond to Thomas’s motion or appear at the hearing. Based upon

Thomas’s papers, the court granted Thomas’s motion. Plaintiff subsequently filed a motion for

reconsideration or relief from judgment on February 6. Plaintiff’s attorney contends that he did

not view the notice of hearing on Thomas’s motion he received by email, mistaking it for “junk.” 

Plaintiff argues that Thomas’s first payment was late and that, pursuant to the plain terms

of the settlement agreement, Plaintiff is entitled to have the consent judgment entered. Having

reviewed both parties’ submissions, the court declines to enter the consent judgment. The court

finds that the agreement is ambiguous with respect to whether the ten-day grace period was

intended to be ten calendar days or ten business days as computed under Fed. R. Civ. P. 6(a). 

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Thus, arguably, Thomas’s first payment was timely. Further, although Plaintiff contends that

“time was of the essence” with respect to the payment schedule, Plaintiff has not identified how

he was prejudiced by receiving the $10,000 payment two days late, as he claims.

Therefore, IT IS HEREBY ORDERED that Plaintiff’s February 6, 2006 Motion for Entry

of Consent Judgment and/or Motion for Reconsideration and Relief from Judgment is DENIED.

s/John Corbett O’Meara 

John Corbett O’Meara

United States District Judge

Dated: February 15, 2006

 

 

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