UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

DAWN MARTIN,

Plaintiff,

Case Number 09-12513-BC

v. Honorable Thomas L. Ludington

FEENY CHRYSLER-DODGE OF

GAYLORD, INC.,

Defendant.

_________________________________________/

ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION, DENYING

PLAINTIFF’S MOTION FOR LEAVE TO FILE REPLY, DIRECTING THE FILING OF

SUPPLEMENTAL TRIAL BRIEFS, SCHEDULING PLAINTIFF’S MOTION IN

LIMINE FOR HEARING, AND RESETTING FINAL PRETRIAL CONFERENCE AND

TRIAL DATES

Plaintiff Dawn Martin filed a single-count complaint on June 25, 2009, against Defendant

Feeny Chrysler-Dodge of Gaylord, Inc., arising out of Defendant’s alleged failure to provide her

with written notice of her rights under the Consolidated Omnibus Budget Reconciliation Act of 1985

(“COBRA”), 29 U.S.C. 1161, et. seq. Specifically, Plaintiff alleges that Defendant did not notify

her of her right to continuation of her health care coverage subsequent to the termination of her

employment on August 4, 2008.

On August 10, 2010, the Court denied Plaintiff’s motion for partial summary judgment. See

[Dkt. # 43]. The Court concluded that there was a genuine issue of material fact as to whether

Defendant made a good faith attempt to provide Plaintiff with notice of her rights through a means

reasonably calculated to reach her when it mailed two documents to her home address via First Class

Mail. In addition, the Court concluded that there was an unresolved legal question related to the

manner in which this Court should apply a U.S. Department of Labor (“DOL”) regulation governing
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the specific information that Defendant should have provided to Plaintiff in the documents. As the

moving party, Plaintiff did not meet her burden of informing the Court of the basis for her contention

that she was “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2); Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986).

Now before the Court is Plaintiff’s motion for reconsideration [Dkt. # 47] of the denial of

her motion for partial summary judgment, filed on August 24, 2010. Pursuant to leave granted by

the Court, Defendant filed a response [Dkt. # 55] on September 10, 2010. While Plaintiff has sought

leave to file a reply, see [Dkt. # 53], a reply is not necessary to resolve Plaintiff’s motion, and the

motion for leave will be denied. In addition, Plaintiff’s motion for reconsideration will be denied

because Plaintiff has not identified a proper basis for a motion for reconsideration under Eastern

District of Michigan Local Rule 7.1(h)(3).

To prevail on a motion for reconsideration, the moving party generally must demonstrate “a

palpable defect by which the court and the parties [were] misled . . . [and] 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 which is obvious, clear, unmistakable, manifest or plain.” See United States v. Cican, 156

F. Supp. 2d 661, 668 (E.D. Mich. 2001). Generally such motions will not be granted where the

motion “merely present[s] the same issues ruled upon by the court, either expressly or by reasonable

implication.” L.R. 7.1(h)(3). Furthermore, motions for reconsideration “are aimed at re

consideration, not initial consideration.” Id.; Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th

Cir. 2008) (“We have found issues to be waived when they are raised for the first time in motions

for reconsideration.”); see also Sault St. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367,

374 (6th Cir. 1998).
1

 In pertinent part, the regulation provides:

(4) The notice required by this paragraph (b) shall be written in a manner calculated to be understood by

the average plan participant and shall contain the following information: 

(i) The name of the plan under which continuation coverage is available; and the name,

address and telephone number of the party responsible under the plan for the administration

of continuation coverage benefits; 

(ii) Identification of the qualifying event; 

(iii) Identification, by status or name, of the qualified beneficiaries who are recognized by the

plan as being entitled to elect continuation coverage with respect to the qualifying event, and

the date on which coverage under the plan will terminate (or has terminated) unless

continuation coverage is elected; 

(iv) A statement that each individual who is a qualified beneficiary with respect to the

qualifying event has an independent right to elect continuation coverage, that a covered

employee or a qualified beneficiary who is the spouse of the covered employee (or was the

spouse of the covered employee on the day before the qualifying event occurred) may elect

continuation coverage on behalf of all other qualified beneficiaries with respect to the

qualifying event, and that a parent or legal guardian may elect continuation coverage on

behalf of a minor child; 

(v) An explanation of the plan’s procedures for electing continuation coverage, including an

explanation of the time period during which the election must be made, and the date by which

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COBRA imposes a statutory requirement that a plan administrator notify a covered

individual of her right to continue health insurance coverage for up to eighteen months after a

“qualifying event,” such as termination of employment. See McDowell v. Krawchison, 125 F.3d

954, 957 (6th Cir. 1997) (citing 29 U.S.C. §§ 1166(a)(4), 1162, 1163(2)). In the order denying

Plaintiff’s motion for partial summary judgment, the Court noted that the parties agreed that “the

notice given must be sufficient to allow the qualified beneficiary to make an informed decision

whether to elect coverage.” McDowell, 125 F.3d at 958, because both parties cited case law to

illustrate what is necessary for an employee to have sufficient information to make an “informed

decision.”

The Court noted, however, that all of the case law cited by the parties predated the DOL

regulation promulgated on May 26, 2004, and codified at 29 C.F.R. §2590.606-4(b)(4).1

 The parties
the election must be made; 

(vi) An explanation of the consequences of failing to elect or waiving continuation coverage,

including an explanation that a qualified beneficiary’s decision whether to elect continuation

coverage will affect the future rights of qualified beneficiaries to portability of group health

coverage, guaranteed access to individual health coverage, and special enrollment under part

7 of title I of the Act, with a reference to where a qualified beneficiary may obtain additional

information about such rights; and a description of the plan’s procedures for revoking a

waiver of the right to continuation coverage before the date by which the election must be

made; 

(vii) A description of the continuation coverage that will be made available under the plan, if

elected, including the date on which such coverage will commence, either by providing a

description of the coverage or by reference to the plan's summary plan description; 

(viii) An explanation of the maximum period for which continuation coverage will be

available under the plan, if elected; an explanation of the continuation coverage termination

date; and an explanation of any events that might cause continuation coverage to be

terminated earlier than the end of the maximum period; 

(ix) A description of the circumstances (if any) under which the maximum period of

continuation coverage may be extended due either to the occurrence of a second qualifying

event or a determination by the Social Security Administration, under title II or XVI of the

Social Security Act (42 U.S.C. 401 et seq. or 1381 et seq.) (SSA), that the qualified

beneficiary is disabled, and the length of any such extension; 

(x) In the case of a notice that offers continuation coverage with a maximum duration of less

than 36 months, a description of the plan’s requirements regarding the responsibility of

qualified beneficiaries to provide notice of a second qualifying event and notice of a

disability determination under the SSA, along with a description of the plan's procedures for

providing such notices, including the times within which such notices must be provided and

the consequences of failing to provide such notices. The notice shall also explain the

responsibility of qualified beneficiaries to provide notice that a disabled qualified beneficiary

has subsequently been determined to no longer be disabled; 

(xi) A description of the amount, if any, that each qualified beneficiary will be required to

pay for continuation coverage; 

(xii) A description of the due dates for payments, the qualified beneficiaries’ right to pay on a

monthly basis, the grace periods for payment, the address to which payments should be sent,

and the consequences of delayed payment and non-payment; 

(xiii) An explanation of the importance of keeping the administrator informed of the current

addresses of all participants or beneficiaries under the plan who are or may become qualified

beneficiaries; and 

(xiv) A statement that the notice does not fully describe continuation coverage or other rights

under the plan, and that more complete information regarding such rights is available in the

plan’s summary plan description or from the plan administrator. 

29 C.F.R. §2590.606-4(b)(4).

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did not address how the DOL regulation may have impacted the standard developed in the case law,
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nor the weight to be given to the DOL regulation. More specifically, the Court noted that the parties

did not address whether the regulation was intended to be binding or persuasive, and whether it was

simply meant to provide guidance to plan administrators as to the information that will allow a

covered individual to make a “meaningful choice,” or whether it is meant to be enforced by the

courts in a strict, technical manner.

In her opening brief in support of her motion for summary judgment, Plaintiff asserted that

the regulation was “deemed to modify the more general statement of the requirement of ‘good faith.’

” Pl. Br. 16; [Dkt. # 26]. Importantly, Plaintiff only argued that the regulation “modified” the case

law; she did not argue that the regulation supplanted the case law. Indeed, Plaintiff primarily relied

on Meadows v. Cagles’s, Inc., 954 F.2d 686, 692 (11th Cir. 1992), a case that predated the

regulation, for the proposition that “notice must be sufficient such that the discharged employee can

make ‘an informed and intelligent decision whether to elect continuation coverage.’ ” Plaintiff

further relied on Van Hoove v. Mid-American Building Maintenance, Inc., 841 F. Supp. 1523 (D.

Kan. 1993), another case that predated the regulation, to specifically argue that the documents

purportedly provided to Plaintiff “deprived Plaintiff of her right to make ‘an informed and intelligent

decision whether to elect continuation of coverage.’ ” Pl. Br. 17; [Dkt. # 26]. In her reply brief,

Plaintiff criticized Defendant for relying on case law predating the regulation, but again cited

Meadows for the proposition that notice must be sufficient to allow an employee to “make an

informed decision whether to elect continuation of coverage.” Pl. Reply. Br. 5-6; [Dkt. # 35].

It is only now, in her motion for reconsideration, that Plaintiff seeks to argue that the

regulation should be given “controlling weight,” because it effectively supplanted all prior case law

interpreting COBRA notice requirements, citing, inter alia, Chevron, U.S.A., Inc. v. Natural
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Resources Defense Council, Inc., 467 U.S. 837 (1984). Such a contention is significantly different

than Plaintiff’s original suggestion that the regulation “modified” the case law, which is the only

argument that was presented in Plaintiff’s motion for summary judgment. Given that Plaintiff’s

original motion advanced the “informed decision” standard from case law predating the regulation

and relied on additional case law predating the regulation, Plaintiff’s position in her motion for

reconsideration may reasonably be characterized as inconsistent, and waived, as Defendant suggests.

In any event, Plaintiff’s argument exceeds the scope of a proper motion for reconsideration.

Accordingly, because the motion exceeds the scope, if not alters, the scope of her motion for

summary judgment, the motion for reconsideration will be denied.

While Plaintiff’s lack of attention to the legal effect of the regulation prevents the Court from

granting her motion for summary judgment, this does not necessarily mean that the issue, now

raised, need not be addressed prior to trial. It may be true, as Defendant suggests, that Plaintiff has

waived the argument by advancing the “informed decision” standard developed by case law

predating the regulation. On the other hand, Plaintiff’s motion for summary judgment did cite the

regulation. Thus, the parties will be directed to file supplemental trial briefs, prior to submission

of the trial briefs required by the case management and scheduling order. See [Dkt. # 7, § XII(C)].

The parties supplemental trial briefs should not only address the potential waiver, but also

the underlying substantive arguments. To date, the parties treatment of the significance of the DOL

regulation has been cursory. For example, while arguing that the regulation is “binding,” Plaintiff

has not explained why and what it means to say that it should be interpreted and applied in a strict,

technical manner. It is not inconceivable that even if “binding,” only substantial compliance is

required as the otherwise binding case law provided before issuance of the regulation. Similarly,
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the parties have not described the procedural history of the regulation, including the impetus or

justification for its enactment. Nor have they described the scope of authority granted to the DOL

by Congress with respect to COBRA and the promulgation of regulations. Finally, adequate

attention has also not been paid to whether the pertinent COBRA provisions are unambiguous, such

that the regulation does not supersede the case law as Defendant suggests, pursuant to Neal v. United

States, 516 U.S. 284 (1996), as clarified by National Cable & Telecommunications Association v.

Brand X Internet Services, 545 U.S. 967 (2005).

Accordingly, it is ORDERED that Plaintiff’s motion for reconsideration [Dkt. # 47] is

DENIED.

It is further ORDERED that Plaintiff’s motion for leave to file a reply [Dkt. # 53] is

DENIED.

It is further ORDERED that the parties are DIRECTED to file supplemental trial briefs as

outlined above, and no longer than twenty pages on or before October 6, 2010. Any responses, no

longer than ten pages, shall be filed on or before October 20, 2010.

It is further ORDERED that Plaintiff’s motion in limine [Dkt. # 48] is SCHEDULED for

HEARING on November 15, 2010, at 2:00 p.m.

It is further ORDERED that the final pretrial conference is RESET to November 15, 2010,

at 2:00 p.m., and the trial date is RESET to November 30, 2010, at 8:30 a.m.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: September 15, 2010
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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 September 15, 2010.

s/Tracy A. Jacobs 

TRACY A. JACOBS