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 The full designation of this motion is Defendant’s Motion for Reconsideration of the

Court’s Order Sustaining Plaintiffs’ Objection to Magistrate Judge’s Scheduling Order, Granting

Plaintiff’s Motion for Adoption of Scheduling Order, Administratively Terminating Defendant’s

Motion for Protective Order, Administratively Terminating Plaintiffs’ Motion to Compel

Discovery, and Entering Scheduling Order.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DENNIS BLACK, ET AL.,

PLAINTIFFS,

v.

PENSION BENEFIT GUARANTY

CORPORATION, ET AL.,

DEFENDANTS.

/

Case No. 09-13616

HONORABLE ARTHUR J. TARNOW

SENIOR UNITED STATES DISTRICT JUDGE

ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION AND INTERLOCUTORY

APPEAL [194]

Now before the Court is Defendant’s Motion for Reconsideration and Interlocutory Appeal

[194].1 

Motion for Reconsideration

Local Rule 7.1(h)(3) provides that:

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.

See Hansmann v. Fid. Invs. Institutional Servs. Co., 326 F.3d 760, 767 (6th Cir. 2003) (A motion

for reconsideration is granted only “if the movant demonstrates that the district court and the parties

have been misled by a palpable defect, and correcting the defect will result in a different disposition

of the case.”) “A ‘palpable defect’ is a defect which is obvious, clear, unmistakable, manifest or

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plain.” Fleck v. Titan Tire Corp., 177 F. Supp. 2d 605, 624 (E.D. Mich. 2001) (internal citations

omitted). Further, “[t]he decision whether to grant reconsideration lies largely within the discretion

of the court.” Yuba Natural Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990).

Defendant’s motion for reconsideration relies on a mischaracterization of this Court’s Order

Sustaining Plaintiffs’ Objection to Magistrate Judge’s Scheduling Order [193]. In its motion

Defendant asserts that this Court has “summarily rejected nearly 40 years of PBGC practice,” “has

failed to enforce 29 U.S.C. § 1342(c) according to its terms,” and has “disregard[ed] Congress’s

intent as expressed in the statute to avoid a constitutional question.” Def.’s Mot. For Recons. at 5-8.

Defendant in effect argues that this Court has reached a decision on the merits of this case. As stated

on the record at a hearing held on September 24, 2010, regarding various motions, including

Defendant’s Motion to Dismiss [23] and Motion for Summary Judgment [45], this Court has not

ruled on the meaning of the statutory language of 29 U.S.C. § 1342(c), or on Congress’s intent in

enacting said statute, or on whether Defendant’s practices are in accordance with section 1342(c).

Rather, this Court dismissed without prejudice Defendant’s Motion to Dismiss, finding that,

accepting as true all of the factual allegations contained in the complaint, Plaintiff had stated a

cognizable claim upon which relief could be granted. This Court also found, for reasons stated on

the record, that there were sufficient material facts in dispute to dismiss without prejudice

Defendant’s Motion for Summary Judgement, despite Defendant’s claim that “neither Plaintiffs nor

the Court have identified a single disputed fact that would justify discovery . . . .” Def.’s Mot. For

Recons. at 2. 

In attempting to characterize this Court’s dismissal of Defendant’s Motions as a decision on

the merits, Defendant has misstated the position of the Court. A misstatement of the Court’s position

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does not constitute a palpable defect. To the extent that Defendant simply restates arguments

previously made in support of their Motion to Dismiss and Motion for Summary Judgment, the

Court has already rejected these arguments for the reasons stated on the record at the September 24,

2010 hearing.

Interlocutory Appeal

Defendant asks in the alternative that this Court permit an interlocutory appeal pursuant to

28 U.S.C. §1292(b). A district court judge may certify an issue for interlocutory appeal if the case

“involves a controlling question of law as to which there is substantial ground for difference of

opinion and... an immediate appeal from the order may materially advance the ultimate termination

of the litigation . . . .” 28 U.S.C. § 1292(b). 

The Court declines to certify an interlocutory appeal in this matter. The plain language of

28 U.S.C. §1292(b) makes the district court’s decision whether to certify an appeal discretionary.

Certification should be ordered “sparingly and only in exceptional cases.” In re City of Memphis,

293 F.3d 345, 350 (6th Cir. 2002); see also Kraus v. Board of County Comm’rs, 364 F.2d 919, 922

(6th Cir. 1966). 

Defendant’s request for interlocutory appeal relies upon a mischaracterization of this Court’s

Order Sustaining Plaintiffs Objections to the Magistrate Judge’s Scheduling Order. A district court

may permit such an appeal when the court is of “the opinion that such an 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.” Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 47 (1995). Defendant characterizes its

appeal as necessary to resolve the controlling question of “[w]hether Title IV of ERISA allows

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PBGC to terminate pension plans by agreement with plan administrators without obtaining a court

decree.” This Court has not issued any decision on the merits with regard to whether Title IV of

ERISA permits PBGC to terminate a pension plan by agreement with the plan administrator. This

Court’s Order therefore did not involve the controlling question of law for which Defendant seeks

certification. 

Accordingly, IT IS ORDERED that Defendant’s Motion for Reconsideration or

Certification for Interlocutory Appeal [194] is DENIED.

SO ORDERED. 

 s/Arthur J. Tarnow 

Arthur J. Tarnow

 Senior United States District Judge

Dated: October 3, 2011

______________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify on October 3, 2011 that I electronically filed the foregoing paper with the

Clerk of the Court sending notification of such filing to all counsel registered electronically. I hereby

certify that a copy of this paper was mailed to the following non-registered ECF participants on

October 3, 2011: None.

s/Michael E. Lang 

Deputy Clerk to 

District Judge Arthur J. Tarnow

(313) 234-5182

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