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United States District Court, Northern District of Illinois, E.D

December 16, 1983


The opinion of the court was delivered by: Shadur, District Judge.


On November 18*fn1 this Court's memorandum opinion and order (the "Opinion") granted summary judgment under Fed.R.Civ.P. ("Rule") 56 in favor of defendants and against Refrigeration Sales Co., Inc. ("Refrigeration"), consequently dismissing Refrigeration's Complaint with prejudice. 575 F. Supp. 971. Refrigeration has now filed two motions to set aside that judgment:

    1. Its Motion for Reconsideration was filed
  November 28 and entered and continued December 5.

    2. Its Motion for New Hearing, filed December
  8, 1983, is nearly identical to the Motion for
  Reconsideration, except that it includes two
  affidavits in support of Refrigeration's estoppel
  defense to the Rule 56 motion.

Both current motions are wholly without merit for the reasons stated in this memorandum opinion and order.

Motion for Reconsideration

Three of Refrigeration's four grounds for "reconsideration" merely rehash its old arguments. Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va. 1983) explains the function of motions for reconsideration and concludes:

  The motion to reconsider would be appropriate
  where, for example, the Court has patently
  misunderstood a party, or has made a decision
  outside the adversarial issues presented to the
  Court by the parties or has made an error not of
  reasoning but of apprehension. A further basis
  for a motion to reconsider would be a controlling
  or significant change in the law or facts since
  the submission of the issue to the Court. Such
  problems rarely arise and the motion to
  reconsider should be equally rare.

Refrigeration's first three asserted grounds do not fall into any of those categories. Instead they contend this Court was in error on the issues it had considered fully and spoken to in detail in the Opinion. Those arguments should of course be directed to the Court of Appeals.

Refrigeration's fourth ground for reconsideration asserts this Court's misunderstanding of Refrigeration's estoppel argument. Apparently Refrigeration's current position is that defendants are estopped to assert the limitations period in their warehouse receipts because defendants procured a delay in the filing of this action. By contrast, this Court had understood Refrigeration's position to be that defendants were estopped to assert the limitations provision because of actions occurring before the limitations time period began to run. That contention was rejected on the ground that acts giving rise to an estoppel must occur during the time period in which a plaintiff claims he relied on those acts to his detriment.

Reexamination of Refrigeration's summary judgment memorandum reconfirms this Court was wholly justified in its understanding of Refrigeration's argument, as originally posed on the summary judgment motion. Refrigeration's Mem. 10-11 specifically identified the following alleged facts in support of its contention the six elements of estoppel under Illinois law were satisfied:

    1. The defendants repeatedly misrepresented
  their inventory of Refrigeration's goods and the
  amounts of storage charges to which M-J was

    2. The defendants knew since 1977 that their
  inventory records were incorrect and that their
  monthly invoices misstated the actual inventory
  of Refrigeration's goods beyond any minor
  fluctuations normally caused by the lag-time
  introduced by paperwork;

    3. Refrigeration was not aware that M-J was
  misstating its actual inventory of
  Refrigeration's goods;

    4. The defendants fully expected Refrigeration
  to pay the storage charges assessed by M-J;

    5. In reliance on the amounts stated in M-J's
  monthly storage bills, Refrigeration paid all
  such amounts to M-J. Additionally, Refrigeration
  marketed its products and promised shipments to
  its Chicago-area customers in reliance on the
  misstated figures in M-J's inventory reports;

    6. Thus, Refrigeration paid storage charges on
  merchandise that was not actually in storage at
  the M-J warehouse, and Refrigeration lost
  customers in the Chicago area when M-J was unable
  to ship Refrigeration's goods to such customers,
  because the quantities stated in M-J's inventory
  reports were not actually in stock.

Thus Refrigeration is not really clarifying its original position. It is rather asserting a new position as a purported basis for "reconsideration." That kind of afterthought, or shifting of ground, is also not one of the circumstances in which a motion for reconsideration is appropriate. As the
next section demonstrates, with the most limited of exceptions (none of which applies here) a party gets one chance to try its case — and for that purpose summary judgment is the equivalent of trial.

Motion for New Hearing

Refrigeration's motion for new hearing suffers from two defects. Either would be fatal. Together they are compellingly so.

First, Refrigeration's newly-tendered submission of two affidavits in support of its position that defendants procured the late filing of its action constitutes an impermissible piecemeal presentation of evidence.*fn2 In resisting defendants' summary judgment motion, Refrigeration presented no evidence and relied on the evidence submitted by defendants. Summary judgment motions are intended to take the place of trials, and Refrigeration's total failure to produce evidence in its own defense is no different from the failure to produce evidence at trial. What this Court wrote in Keene Corp. v. International Fidelity Insurance Co., 561 F. Supp. 656, 665-66 (N.D.Ill. 1983) (footnote omitted) might well have been written for this case:

  Such motions [for reconsideration or, as in this
  case, for new hearing] cannot in any case be
  employed as a vehicle to introduce new evidence
  that could have been adduced during pendency of
  the summary judgment motion. See Walker v. Hoffman,
  583 F.2d 1073, 1075 (9th Cir. 1978), quoting
  Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir.

    The non-movant has an affirmative duty to come
    forward to meet a properly supported motion for
    summary judgment:

      A party opposing a motion for summary
    judgment simply cannot make a secret of his
    evidence until the trial, for in doing so he
    risks the possibility that there will be no
    trial. A summary judgment motion is intended to
    "smoke out" the facts so that the judge can
    decide if anything remains to be tried.

  Accord, W.A. Krueger Co. v. Northern Trust Co., No.
  81 C 6064, slip op. at 7 n. 7 (N.D.Ill. Jan. 7,
  1983) ("a litigant cannot `hold back' evidence on a
  summary judgment motion").

Just this month our Court of Appeals dealt with the related issue of a failure to present evidentiary matters during trial in Canada Dry Corp. v. Nehi Beverage Co., Inc., 723 F.2d 512 (7th Cir. 1983). It held such failures to act constitute a trial strategy to which the delinquent party is bound. In discussing whether computational errors in damage summary charts constituted reversible error, the court stated (At 523):

  Accordingly, if Canada Dry, once it learned of
  the damages charts, had asked for a recess to
  check the underlying calculations, a refusal by
  the trial court to allow Canada Dry sufficient
  time would presumably have been an abuse of
  discretion. This, however, did not occur. Canada
  Dry never sought the opportunity during the trial
  to check the data, although it did ask for and
  receive at least the worksheets used by the
  chart's preparer. Canada Dry chose instead to
  challenge the charts on other grounds during the
  trial. Canada Dry selected its own trial strategy
  and failed to seek an adequate recess to analyze
  the summary fully. It was this choice which
  "deprived" it of the opportunity to discover
  before the end of the trial that the summary
  charts on damages were seriously flawed.

This case really follows a fortiori from Canada Dry. There is no excuse at all for Refrigeration's failure to act when it was necessary to do so. Both sides knew the core issue in the case was whether or not defendants could rely on the limitations provision in the warehouse receipts. All Refrigeration's arguments dealt with reasons the receipts should not be enforced as written. One of those claimed reasons was estoppel. And Refrigeration advances no contention the affidavits contain newly-discovered evidence (indeed, the identity of the affiants and the contents of the affidavits belie that possibility).

Second, the tendered affidavits do not satisfy Rule 56 testimonial standards. Both Leonard Kestenbaum and Leo Feldman say in general terms that Alfred L. Jackson made statements of a general character "on several occasions" and described what occurred "on such occasions." Neither affidavit satisfies the Rule 56(e) requirement of trial-type testimony, implicit in the language that affidavits "shall be made on personal knowledge [and] set forth such facts as would be admissible in evidence. . . ."*fn3 That defect might perhaps be cured by redrafting, but that contingency need not be dealt with, for the first flaw discussed earlier in this section is incurable.


On any issue in a summary judgment motion, as on any issue at trial, each party is entitled to one bite at the apple. Refrigeration has had that bite on the issue whether defendants are estopped to raise the limitations provision. In filing its motions for reconsideration and for new hearing Refrigeration impermissibly seeks to retry its case. Both those motions are denied.

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