UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NASSER ALJALHAM, 

Plaintiff, No. 08-14043

Hon. Gerald E. Rosen

v. Mag. Donald A. Scheer

AMERICAN STEAMSHIP COMPANY,

Defendant and 

Third-Party Plaintiff,

v.

ALLOUEZ MARINE SUPPLY,

Third-Party Defendant.

_____________________________/

OPINION AND ORDER DENYING 

THIRD-PARTY DEFENDANT’S MOTION FOR RECONSIDERATION

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on July 23, 2010 

PRESENT: Honorable Gerald E. Rosen

United States District Judge

By opinion and order dated July 12, 2010, this Court granted summary judgment in

Third-Party Defendant Allouez Marine Supply’s favor on Defendant/Third-Party Plaintiff

American Steamship Company’s claim of Ryan indemnity. The Court denied summary

judgment on the remaining third-party claims asserted against Allouez: for negligence and

contribution. (Docket # 70.) Through the present motion, filed on July 22, 2010, Allouez
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seeks reconsideration of certain aspects of the Court’s ruling pursuant to Fed. R. Civ. P.

59(e).

Fed. R. Civ. P. 59(e) allows parties to move for a court to alter or amend a

previously issued judgment. Generally, there are three situations which justify

reconsideration under Rule 59(e): (1) to correct a clear error of law; (2) to account for

newly discovered evidence; (3) to accommodate an intervening change in controlling law;

or (4) to prevent manifest injustice. Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th

Cir. 2005); see also GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir.

1999). However, motions under Rule 59(e) “are not intended as a vehicle to relitigate

previously considered issues; should not be utilized to submit evidence which could have

been previously submitted in the exercise of reasonable diligence; and are not the proper

vehicle to attempt to obtain a reversal of a judgment by offering the same arguments

previously presented.” Kenneth Henes Special Projects Procurement v. Continental

Biomass Industries, Inc., 86 F. Supp. 2d 721, 726 (E.D. Mich. 2000). “A motion to alter

or reconsider a judgment is an extraordinary remedy and should be granted sparingly.”

Plaskon Elec. Materials, Inc. v. Allied-Signal, Inc., 904 F. Supp. 644, 669 (N.D. Ohio

1995); United States v. Limited, Inc., 179 F.R.D. 541, 547 (S.D. Ohio 1998) (citing

Sussman v. Salem, Saxon & Nielsen, P.A ., 153 F.R.D. 689, 694 (M.D. Fla. 1994),

Pennsylvania Ins. Guar. Ass’n v. Trabosh, 812 F. Supp. 522, 524 (E.D. Pa.1992)).

The requirements for the granting of motions for reconsideration are further set

forth in Local Rule 7.1(h) (formerly Rule 7.1(g)), which provides in relevant part:
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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. 

Local Rule 7.1(h)(3), U.S. District Court, Eastern District of Michigan. A “palpable

defect” is “a defect that is obvious, clear, unmistakable, manifest or plain.” United States

v. Lockette, 328 F. Supp. 2d 682, 684 (E.D. Mich. 2004).

Having reviewed and considered Third-Party Defendant Allouez’s submissions,

the Court finds that it has not shown a palpable defect or that correcting the defect will

result in a different disposition of the motion. Allouez argues that the Court incorrectly

relied on a Michigan court case—Clark v. Dalman, 379 Mich. 251, 150 N.W.2d 755

(1967)—in its analysis of Defendant/Third-Party Plaintiff American Steamship

Company’s negligence claim against Allouez. Specifically, the Court cited Clark before

discussing whether Allouez owed Plaintiff and American Steamship Company a duty of

care. Allouez argues that Clark is no longer good law. However, Clark, or more

specifically the holding in Clark that actionable negligence requires a legal relationship

between parties by which the injured party is owed a duty by the other, has not been

overturned. Rather, as the Michigan Supreme Court noted in Fultz v. Union Commerce

Assocs., 470 Mich. 460, 683 N.W.2d 587 (2004), in a tort action stemming from

misfeasance of a contractual obligation (which was at issue in Clark), the plaintiff must

show the “violation of a legal duty separate and distinct from the contractual obligation.” 
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Id. at 467. This “separate and distinct duty” may be the general common law duty to act

so as not to unreasonably endanger the well-being of others. In this case, the Court finds

that there is sufficient evidence in the record to give rise to tort duties as distinct from the

contractual duties that Allouez may have owed American Steamship Company. In sum,

Allouez has failed to show a palpable defect or that correcting the defect will result in a

different disposition of the motion. Even if the holding in Clark relied upon by the Court

has been limited or impliedly overruled, Allouez further fails to demonstrate that

“manifest injustice” will result in the absence of the granting of the relief requested.

For all of these reasons,

IT IS HEREBY ORDERED that Third-Party Defendant Allouez Marine Supply’s

Motion for Reconsideration Pursuant to Rule 59(e) (Docket # 73) is DENIED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: July 23, 2010

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

23, 2010, by electronic and/or ordinary mail.

s/Ruth A.Gunther 

Case Manager

(313) 234-5137