UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

ALLAN KUEHNEMUND, 

KUEHNEMUND POTATO FARMS,

and K AND T FARMS,

Plaintiffs, Case Number 08-14647-BC 

v. Honorable Thomas L. Ludington

CROP PRODUCTION SERVICES, INC., 

Defendant. 

__________________________________/ 

ORDER DENYING MOTION FOR RECONSIDERATION, DENYING MOTION TO

STRIKE AND FOR SANCTIONS, DENYING MOTION TO EXTEND AS MOOT, AND

DENYING WITHOUT PREJUDICE MOTION TO PROCEED IN FORMA PAUPERIS

On November 3, 2008, Defendant Crop Production Services, Inc. removed Plaintiffs Allan

Kuehnemund, Kuehnemund Potato Farms (“KPF”), and K and T Farms’ (“KTF”) complaint to this

Court. The complaint alleges that Plaintiffs purchased diluted fertilizer and chemicals from

Defendant Crop Production Services, Inc. (“Defendant”). On June 23, 2009, the Court adopted a

report and recommendation to grant Defendant’s motion to dismiss Plaintiffs’ complaint with

prejudice. Dkt. # 25. In that order, the Court rejected Plaintiffs’ arguments that the applicable

statute of limitations period tolled pursuant to Mich. Comp. Laws § 600.5851(9) and that res judicata

did not bar Plaintiffs’ additional claims. Id. at 3-4. The Court also enjoined Plaintiff from filing

further complaints without the Court’s authorization. Id. at 5.

On July 24, 2009, Plaintiffs filed a motion for reconsideration and a notice of appeal. Dkt.

# 26, 27. The Court will deny Plaintiffs’ motion for reconsideration for two reasons. First, the

motion advances similar arguments contained in the pleadings associated with the motion to dismiss

and report and recommendation. While E.D. Mich. LR. 7.1(g) permits a party to request

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reconsideration of an order, “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 have been misled but also show that correcting the defect will result in a different disposition

of the case.” Id. 7.1(g)(3). A “palpable defect” is a defect which is obvious, clear, unmistakable,

manifest, or plain. Fleck v. Titan Tire Corp., 177 F. Supp. 2d 605, 624 (E.D. Mich. 2001). The

motion for reconsideration continues to argue that Plaintiffs are entitled to equitable tolling and that

res judicata does not apply in this case. The Court previously addressed each of those arguments.

See dkt. # 25. 

In addition, a motion for reconsideration must be filed within ten days after the entry of the

order. E.D. Mich. LR. 7.1(g)(1). Even accounting for delays associated with service and filing sent

via the U.S. Postal Service, Plaintiffs’ motion was at least a week late. For both these reasons, the

Court will deny the motion for reconsideration.

Next, Defendant moved to strike the motion for reconsideration and for sanctions because

Plaintiff’s motion is untimely. Dkt. # 29. In light of the denial of the motion for reconsideration,

the request to strike is moot. With respect to sanctions, the Court will deny that motion because a

response was not ordered by the Court. See E.D. Mich. LR 7.1(g)(2). Notwithstanding that

proposition, the Court will monitor future pleadings in this matter to avoid unnecessary and frivolous

motion practice. 

 Finally, Plaintiff Kuehnemund also filed a motion to proceed in forma pauperis on appeal.

Dkt. # 28. In support, Plaintiff Kuehnemund contends that he has been permitted to proceed in

forma pauperis with respect to his criminal proceeding. While that may be accurate, that does not

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relieve Plaintiff Kuehnemund of demonstrating that he satisfies the criteria set forth in 28 U.S.C. §

1915(a). Thus, the Court will deny the motion without prejudice.

Accordingly, it is ORDERED Plaintiffs’ motion for reconsideration [Dkt. # 26] is DENIED.

It is further ordered that Defendant’s motion to strike and for sanctions [Dkt. # 29] is

DENIED. 

It is further ORDERED Plaintiffs’ motion for an extension to file a reply brief and response

to the motion to strike [Dkt. # 31] is DENIED as moot. 

It is further ORDERED that Plaintiff Kuehnemund’s motion for leave to proceed in forma

pauperis [Dkt. # 28] is DENIED WITHOUT PREJUDICE. 

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: August 14, 2009

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on August 14, 2009.

s/Tracy A. Jacobs 

TRACY A. JACOBS

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