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Marian Tankersley, et al v. John R. Lynch

June 27, 2011

MARIAN TANKERSLEY, ET AL.,
PLAINTIFFS,
v.
JOHN R. LYNCH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed June 27, 2011 **

NOT FOR CITATION

ORDER GRANTING PLAINTIFFS' MOTION UNDER RULE 60(b) FOR RELIEF FROM ORDER OF DISMISSAL [Re: Docket No. 27]

BACKGROUND

In April 2007, California residents Marian Tankersley ("Tankersley") and Richard Diehl ("Diehl") (collectively, "Plaintiffs") purchased a franchise and three exclusive territories from Collision on Wheels International, LLC ("CoW"), a Michigan-based seller of mobile auto body 20 repair system franchises. Docket No. 1, Ex. A ("Compl.") ¶¶ 1, 2, 8. Their decision to do so was 21 based in part on information found in CoW's Uniform Franchise Offering Circular ("UFOC"), 22 which contains certain disclosures to potential franchisees and which CoW provided to Plaintiffs the 23 month before. Id. ¶¶ 7, 19, 25.

Plaintiffs alleged that the UFOC upon which they relied contained misstatements and omissions of material fact and that they have been harmed as a result. Id. ¶¶ 18, 21, 24, 26. They 26 filed suit against Michigan residents John Lynch ("Lynch"), Gregory Longe ("Longe"), Gregory Mancina ("Mancina"), Louis Maio ("Maio"), and Richard Bass ("Bass") (collectively, "Defendants"), all of whom are officers or employees of CoW, for violations of Michigan franchise 2 law. Id. ¶¶ 2-6.

Defendants removed this action from California state court and moved to dismiss Plaintiffs' complaint on the ground that this Court did not have personal jurisdiction over Defendants. Docket 5 Docket No. 20 ("Opp'n"). While acknowledging that it was a "close call," the Court granted 7

Defendants' motion, concluding that the exercise of personal jurisdiction over Defendants would 8 have been unreasonable. Docket No. 26 ("Corrected Order") at 6. In so concluding, the Court noted No. 1 ("Notice of Removal"); Docket No. 14 ("MTD"). Plaintiffs opposed Defendants' motion.

-- based on both parties' representations -- that Plaintiffs could "obtain the same relief in Michigan 10 that they could in this Court." Id. at 8. As such, the Court dismissed Plaintiffs' complaint without prejudice. Id.

Procedure 60(b)(1) and (b)(6), for an order vacating the dismissal and transferring the case to the Ten days later, Plaintiffs filed the instant motion, pursuant to Federal Rule of Civil Eastern District of Michigan. Docket No. 27 ("Motion"). The basis of Plaintiffs' motion is that their 15 counsel, Bruce Napell, failed to "recheck" the applicable Michigan statute of limitations -- which has 16 now run -- and so he did not request in his opposition to Defendants' motion to dismiss that the ("Opp'n").

without oral argument, and the June 28, 2011 hearing is vacated.

Federal Rule of Civil Procedure 60(b) provides, in relevant part:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

. . . [or];

(6) any other reason that ...


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