                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0332n.06

                                            No. 12-1688                                    FILED
                                                                                        Apr 04, 2013
                                                                                 DEBORAH S. HUNT, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

KENNETH L. WHITE,

       Plaintiff-Appellant,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
JPMORGAN CHASE BANK, NA,                               WESTERN DISTRICT OF MICHIGAN

       Defendant-Appellee,


CITIBANK, NA,

       Defendant.
                                                /



BEFORE:        MERRITT, CLAY, and GRIFFIN; Circuit Judges.

       CLAY, Circuit Judge. Plaintiff Kenneth L. White appeals from the district court’s final

judgment granting in part Defendant JP Morgan Chase Bank’s motion for summary judgment finding

that the Plaintiff was not the real party in interest to enforce a cashier’s check issued by Defendant,

and from the subsequent order denying Plaintiff’s motion to reconsider. For the following reasons,

we AFFIRM the district court’s grant of summary judgment to Defendant and denial of Plaintiff’s

motion to reconsider.
                                          BACKGROUND

A.      Factual Background

        As president and sole shareholder of Steigmeyer, Inc., Plaintiff entered negotiations on behalf

of the corporation to sell corporate assets to a buyer. In October 2007, Plaintiff and the buyer

allegedly made an oral agreement to sell certain Steigmeyer, Inc. assets and transfer certain debts for

a price of $175,000. Plaintiff was given a $75,000 cashier’s check with his name listed as the payee.

However, Plaintiff admitted in his complaint that he received the check “as president and sole

shareholder of Steigmeyer, Inc.” and that he “deposited the check into Steigmeyer, Inc.’s bank

account with Defendant.” (R. 1, Ex. 2. Verified Compl. ¶ 16.)

        A dispute arose between Plaintiff and the buyer shortly thereafter concerning the proposed

written terms of the asset sale. The buyer disagreed with the terms as proposed by Plaintiff, and thus

called off the deal and ordered a stop payment on the cashier’s check, which Defendant honored.

Negotiations recommenced days later, after which, on October 15, 2007, a new agreement was

entered into. Plaintiff (on behalf of Steigmeyer, Inc.) and the buyer entered into a written asset sales

contract for $100,000. Plaintiff received and deposited a second cashier’s check in the amount of

$100,000 into Steigmeyer, Inc.’s account the next day. However, despite clear contractual terms to

the contrary, Plaintiff alleges that he and the buyer orally agreed to the original $175,000 purchase

price and that the $75,000 cashier’s check was to remain as the first deposit.

        On July 15, 2010, Steigmeyer, Inc., was formally dissolved. Plaintiff asserts that he is

individually entitled to the $75,000 cashier’s check because his name appeared on the check. He

urges that Defendant violated Michigan law when it dishonored the cashier’s check and charged back

the amount of the check to Steigmeyer, Inc.’s account.


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B.      Procedural History

        In August 2010, Plaintiff filed suit against Defendant in the Kent County Circuit Court for

the alleged wrongful dishonor of the $75,000 cashier’s check.1 Defendant removed the case to the

district court, and after discovery moved for summary judgment in June 2011 on a number of bases,

including that Plaintiff was not the real party in interest as required by Federal Rule of Civil

Procedure 17(a).

        In November 2011, the district court granted in part the motion for summary judgment on

Rule 17(a) grounds. Specifically, the district court found that Steigmeyer, Inc., and not Plaintiff, was

the real party in interest because: (1) Plaintiff admitted that he received the cashier’s check as a

representative of the corporation and that he deposited the check into the corporation’s account, (2)

the back charge was to Steigmeyer, Inc.’s account and not Plaintiff’s personal account, and (3) the

underlying agreement for which the check was made out was entered into by Steigmeyer, Inc. (not

Plaintiff). The district court dismissed the action without reaching the merits of the dishonor claim.

The district court further noted that Plaintiff had adequate time prior to its ruling to cure the defect

and that dismissal did not preclude the action from being re-filed in the proper party’s name.

        Plaintiff then moved for reconsideration, which was denied on April 30, 2012. The district

court found that Plaintiff’s new legal argument—that he was successor in interest upon Steigmeyer

Inc.’s dissolution—could have been raised before the grant of summary judgment. The district court

noted that Michigan law would have nonetheless required the corporation (which had dissolved only

one month prior to the filing of the suit) to commence the action as part of its winding-up process,



       1
       The action against Citibank, N.A., was voluntarily dismissed with prejudice. (R. 19, Order,
12/6/2010.)

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and that Plaintiff failed to show that he was entitled to the proceeds in the absence of documentation

that creditors had been paid.

        On May 22, 2012, Plaintiff timely appealed from the district court’s orders granting

Defendant summary judgment and denying Plaintiff’s motion for reconsideration. Plaintiff argues

that the district court erred in considering the underlying asset agreement because Defendant was not

a party to the contract. Plaintiff’s principle argument is that he is the real party in interest because

his name was listed on the cashier’s check and that Defendant violated Michigan law by not

honoring the check according to its terms.

                                           DISCUSSION

I.      PLAINTIFF IS NOT THE REAL PARTY IN INTEREST

        A.      Standard of Review

        This Court reviews a district court’s grant of summary judgment de novo. ACLU of Ohio

Found., Inc. v. DeWeese, 633 F.3d 424, 428 (6th Cir. 2011). Summary judgment should be granted

where “there is no genuine dispute as to any material fact” and the moving party is “entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). That is, summary judgment is proper when the

nonmoving party fails to establish an essential element of its case, Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986), despite this Court drawing all reasonable inferences in favor of the non-moving

party, Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787, 792 (6th Cir. 2009).

        B.      Legal Framework

        “An action must be prosecuted in the name of the real party in interest,” Fed. R. Civ. P. 17(a)

(1), which is the party “who is vested with the right of action on a given claim,” Weston v. Dowty,

414 N.W. 2d 165, 167 (Mich. Ct. App. 1987). “The real party in interest analysis turns upon whether


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the substantive law creating the right being sued upon affords the party bringing the suit a

substantive right to relief.” Ceratin Interested Underwriters at Lloyd’s, London, England v. Layne,

26 F.3d 39, 43 (6th Cir. 1994). This follows from the long-standing principle that parties must assert

their own rights and not the rights or interests of others. See Warth v. Seldin, 422 U.S. 490, 499

(1975). This same principle is no less applicable to corporations, which are generally required to file

actions in the name of the entity and not that of a stockholder or an officer. See Mich. Nat. Bank v.

Mudgett, 444 N.W. 2d 534, 536 (Mich. Ct. App. 1989). Any injury to a stockholder that is merely

derivative of the corporation’s injury will not give that stockholder a right to bring an independent

cause of action. Id.; Walker v. Mich. Public Serv. Comm, 201 F.3d 442, at *2 (6th Cir. 1999)

(unpublished table decision).

        To be sure, however, the inquiry before this Court is not one of Article III standing. See

Zurich Ins. Co. v. Logitrans, Inc., 297 F.3d 528, 531–32 (6th Cir. 2002) (detailing the distinction

between Article III standing and Rule 17(a)). Rather, the question is whether Michigan’s substantive

law precludes Plaintiff from bringing this diversity action despite possibly having constitutional

standing. See Certain Interested Underwriter, 26 F.3d at 43. Rule 17(a) serves to protect a

defendant from double liability, which could potentially result if the party that is actually entitled to

recover files a subsequent action. Zurich, 297 F.3d at 531. Thus, a defendant sued on a negotiable

instrument “may defend on the ground that the plaintiff is not the owner of the instrument, does not

have legal title to it, for the reason that the maker has a right to insist that he pay his obligation but

once, and hence to the true owner.” Bowles v. Oakman, 225 N.W. 613, 614 (Mich. 1929). Where

a court finds that a plaintiff is not the real party in interest, the court may dismiss the action when




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the real party in interest has nonetheless failed to ratify, join, or substitute into the action despite the

passage of reasonable time. Fed. R. Civ. P. 17(a)(3).

        C.      Analysis

        We find that Plaintiff is not the real party interest because he does not have a legal right of

enforcement under Michigan law. Michigan’s Uniform Commercial Code holds a bank liable for

failing to pay a cashier’s check according to its terms. Mich. Comp. Laws § 400.3412. However,

the bank’s duty to pay the cashier’s check according to its terms is owed only to the individual or

entity entitled to enforce the note. See id. The right of enforcement rests only with (1) “the holder

of the instrument;” (2) “a nonholder in possession of the instrument who has the rights of a holder;”

or (3) a person who is not in possession but is entitled to enforce under sections 440.3309 or

440.3418(4). See id. § 440.3301. Section 440.3309 permits enforcement by a party who has

permanently lost possession of the cashier’s check and such loss did not result from a valid transfer

or lawful seizure. Section 440.3418(4) permits enforcement by a party who has lost possession of

a cashier’s check that was mistakenly paid by the bank to someone other than that party.

        Though Plaintiff was named on the cashier’s check, he no longer was the holder after he

negotiated the instrument to Steigmeyer, Inc. Generally, a party named on the negotiable instrument

is the payee and holder of the instrument with the right of enforcement. See Mich. Comp. Laws

§ 440.3110. However, once the instrument (here, the cashier’s check) is negotiated to another party,

that subsequent party becomes the holder with the right of enforcement. Id. § 440.3201(1)

(“‘Negotiation’ means a transfer of possession, whether voluntary or involuntary, of an instrument

by a person other than the issuer to a person who thereby becomes its holder.”). Where, as is the

case here, there is a payee named on the cashier’s check, negotiation occurs once the check is


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endorsed and possession is transferred to another party. Id. § 440.3201(2). Once the check has been

validly negotiated, the payee loses the right of enforcement as he is no longer in possession and

cannot claim a right under sections 440.3309 or 440.3418(4). See id § 440.3301.

       Plaintiff adamantly asserts that he is the holder of the cashier’s check (and therefore the real

party in interest) because it is his name that appears on the check. But even assuming Plaintiff was

the intended payee,2 he glosses over what was clearly a negotiation of the cashier’s check when the

check was admittedly endorsed and deposited into Steigmeyer, Inc.’s bank account. If it were simply

a deposit into his personal account, then Plaintiff’s argument would have more traction because he

would still be in possession of the funds deposited from the check. However, contrary to Plaintiff’s

claims on appeal, the account to which the check was deposited was not his personal account, but

instead was an account belonging to the corporation, a separate legal entity. As a separate legal

entity,3 with a bank account in its own name, it was Steigmeyer, Inc. that received the proceeds from

the cashier’s check upon deposit, not Plaintiff.        Thus, contrary to Plaintiff’s assertion, the

endorsement and deposit into the Steigmeyer account was a negotiation of the cashier’s check to

Steigmeyer, Inc. See id. § 440.3201(2). Steigmeyer, Inc. thereafter took title of the cashier’s check.




       2
         Plaintiff admitted in his verified complaint that he accepted the check as president and sole
shareholder of Steigmeyer, Inc., and thus, he owed a fiduciary duty to the corporation to refrain from
self-dealing. See Mich. Comp. Laws § 450.1541a. Moreover, Plaintiff’s admission suggests that
Steigmeyer, Inc. was the intended payee despite whose name appeared on the check. See Mich.
Comp. Laws § 440.3110(1) (“The instrument is payable to the person intended by the signer even
if that person is identified in the instrument by a name or other identification that is not that of the
intended person.”).
       3
         “A corporation exists as an entity apart from its shareholders, even where the corporation
has but one shareholder.” Fassihi v. Sommers, Schwartz, Silver, Schwartz & Tyler, P.C., 309 N.W.
2d 645, 648 (Mich. Ct. App. 1981).

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Consequently, Plaintiff cannot enforce the cashier’s check under Mich. Comp. Laws § 440.3301, and

thus, he is not the real party in interest under Rule 17(a).

       Accordingly, we find that the district court properly granted the motion for summary

judgment.

II.    MOTION TO RECONSIDER

       Though this Court generally reviews a district court’s denial of a motion to alter or amend

under Rule 59(e) for abuse of discretion, we apply a de novo standard of review when the motion

seeks review of a grant of summary judgment. ACLU of Ky. v. McCreary Cnty., Ky., 607 F.3d 439,

450 (6th Cir. 2010). A court may grant a timely filed 59(e) motion only where there is: “(1) a clear

error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a

need to prevent manifest injustice.” Id. (citation and internal quotation marks omitted). Such a

motion does not permit a litigant to re-argue a case or present new arguments that could have been

raised prior to judgment. Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008).

       Plaintiff presented no newly discovered evidence or intervening change in controlling law

in his motion to reconsider. Rather, he argued that even if he was not the real party in interest, he

was the successor in interest to the now defunct Steigmeyer, Inc.; as such, he asserted that he had the

right to enforce payment on the cashier’s check. He advances this same claim on appeal. However,

the district court properly denied the motion because this argument could have been presented in

Plaintiff’s response to the motion for summary judgment, before the district court entered its order

on the summary judgment motion. See id. Consequently, we also do not reach the merits of this

argument as it was not properly preserved for appellate review. See Scottsdale Ins. Co. v. Flowers,

513 F.3d 546, 553 (6th Cir. 2008).


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       For the foregoing reasons, we AFFIRM the district court’s orders granting Defendant

summary judgment and denying Plaintiff’s motion for reconsideration.




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