UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KELLY AEROSPACE THERMAL

SYSTEMS, LLC,

Plaintiff,

v.

ABF FREIGHT SYSTEM, INC,

Defendant.

 /

Case No. 15-12227

Honorable Nancy G. Edmunds

ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OR, IN THE

ALTERNATIVE, TO CERTIFY THE COURT’S JUNE 9, 2016 OPINION AND ORDER

FOR INTERLOCUTORY APPEAL [35]

Plaintiff brings this action under the Carmack Amendment, 49 U.S.C. § 14706 et seq.,

to recover losses incurred after its aircraft parts were damaged during shipment by

Defendant carrier. The parties filed cross-motions for partial summary judgment on the

issue of whether the parties agreed to limit Defendant’s liability. On June 9, 2016, the Court

granted partial summary judgment for Defendant. (Dkt. 32.) Plaintiff seeks reconsideration

of that opinion and order, or in the alternative, requests that the Court certify that order for

interlocutory appeal. For the reasons stated below, the Court DENIES the motion.

Pursuant to Rule 7.1(h) of the Local Rules for the Eastern District of Michigan, a party

may file a motion for reconsideration within fourteen days after a court issues an order to

which the party objects. Although a court has the discretion to grant such a motion, it

generally will not grant a motion for reconsideration that “merely present[s] the same issues

ruled upon by the court, either expressly or by reasonable implication.” E.D. Mich. L. R.

7.1(h). To persuade the court to grant the motion, the movant “must not only demonstrate

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a palpable defect by which the court and the parties ... have been misled but also show that

correcting the defect will result in a different disposition of the case.” Id.

Plaintiff’s motion does not satisfy the requirements of Rule 7.1(h). Rather, Plaintiff’s

motion makes a new argument, misconstrues the facts, and rehashes arguments

previously made. For example, Plaintiff now argues that the 2013 pricing agreement

expired prior to the shipment at issue. This is a new argument made for the first time in

Plaintiff’s motion for reconsideration. The basis for the argument comes from language in

Defendant’s shipping guide, which has been available to Plaintiff since at least since March

1, 2016. (See Dkt. 11-6.) Because Plaintiff could have made this argument before the Court

issued the partial summary judgment order, this argument is not appropriately made in a

motion for reconsideration and the Court need not address it.1 See Roger Miller Music, Inc.

v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 395 (6th Cir. 2007) (“parties cannot use a motion

for reconsideration to raise new legal arguments that could have been raised before a

judgment was issued”); Smith ex rel. Smith v. Mount Pleasant Pub. Sch., 298 F. Supp. 2d

636, 637 (E.D. Mich. 2003) (“a motion for reconsideration is not properly used as a vehicle

... to advance positions that could have been argued earlier but were not”).

Plaintiff also argues that the Court erred by noting that “the rate quotations for the

2014 shipment included the same discount tariff series number, ‘ABF646,’ as listed in the

 1Even if the Court considered the merits of the argument, however, Plaintiff would

nevertheless fail to demonstrate a palpable defect by which the Court or parties were

misled. The shipping guide merely states that Defendant “reserves the right to discontinue

your Specific Account Pricing, without further notice, if it is not used during any continuous

120-day period.” (Dkt. 11-6, at 18.) Even if Defendant reserved the right to terminate the

pricing agreement between the parties, there is no evidence that Defendant exercised (or

even attempted to exercise) this right.

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2013 agreements.” (Dkt. 32, at 6.) Plaintiff argues that, in fact, a different rate number was

utilized for the 2014 shipment, and points to the “rate tariff” number, “ABF504.” Plaintiff is

mistaken. Immediately to the right of the rate tariff number is the discount tariff series

number, “ABF646”—the same number listed in the 2013 agreements and related

communications. (See, e.g., Dkt. 11-4; Dkt. 11-9; Dkt. 11-10.) The Court did not misstate

the facts and Plaintiff has failed to demonstrate a palpable defect by which the Court was

misled.

Finally, Plaintiff again argues that Defendant initially used a different account number

for Plaintiff, thus demonstrating that the 2013 pricing agreements should not apply. The

Court already addressed and rejected this argument (see Dkt. 32, at 6 n.5), and “a motion

for reconsideration is not properly used as a vehicle to re-hash old arguments.” Smith, 298

F. Supp. 2d 636, 637 (E.D. Mich. 2003). 

Plaintiff alternatively requests that the Court certify the June 9 order for immediate

appeal pursuant to 28 U.S.C. § 1292(b). Under 28 U.S.C. § 1292(b), certification for appeal

is appropriate if the Court is of the opinion that its interlocutory order “involves a controlling

question of law as to which there is substantial ground for difference of opinion and that an

immediate appeal from the order may materially advance the ultimate termination of the

litigation.” As observed by the Sixth Circuit, “[r]eview under § 1292(b) is granted sparingly

and only in exceptional cases.” In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002). 

This is not the exceptional case where such review should be granted. “[W]hat the

framers of § 1292(b) had in mind is more of an abstract legal issue or what might be called

one of ‘pure’ law, matters the court of appeals can decide quickly and cleanly without

having to study the record.” Biegas v. Quickway Carriers, Inc., No. 05-73616, 2007 WL

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1675140, at *2 (E.D. Mich. June 11, 2007) (internal quotation marks omitted). The Court’s

June 9 opinion and order decided whether the parties had agreed in advance of the 2014

shipment to limit Defendant’s liability for the shipment. This is not an “abstract legal issue”

or one of “pure” law; rather, any review of the Court’s grant of partial summary judgment

to Defendant on this issue would necessarily entail a thorough review of the case’s factual

record. In addition, the Court is not convinced that there is substantial ground for difference

of opinion on the issue, nor that an immediate appeal from the June opinion and order will

materially advance the ultimate termination of this litigation. 

Accordingly, Plaintiff’s motion for reconsideration and request in the alternative to

certify the June 9, 2016 opinion and order for immediate appeal are DENIED. 

SO ORDERED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: August 17, 2016

I hereby certify that a copy of the foregoing document was served upon counsel of record

on August 17, 2016, by electronic and/or ordinary mail.

s/Carol J. Bethel 

Case Manager

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