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LEWIS v. HERMANN

December 19, 1991

EDMUND J. LEWIS, M.D., individually and as Trustee for EDMUND J. LEWIS, M.D. & ASSOCIATES, S.C., DEFINED BENEFIT PENSION TRUST, EDMUND J. LEWIS, M.D. & ASSOCIATES, S.C., an Illinois corporation, and AMERICAN MEDICAL SUPPLY CORPORATION, an Illinois corporation, Plaintiffs,
v.
RICHARD C. HERMANN, R. C. HERMANN & ASSOCIATES, C.P.A., TRAVERSE REALTY AND DEVELOPMENT CORPORATION, an Illinois corporation, CHARLES J. RICHARDS, RIVER NORTH SECURITIES CORPORATION, an Illinois corporation, MUCH SHELIST, FREED, DENENBERG, AMENT & EIGER, P.C., SCHWARTZ & FREEMAN, and LONG GROVE TRADING CO., Defendants.


Aspen


The opinion of the court was delivered by: MARVIN E. ASPEN

Plaintiffs Dr. Edmund J. Lewis, individually and as Trustee for Edmund J. Lewis, M.D. & Associates, S.C. defined Benefit Pension Trust, Edmund J. Lewis, M.D. & Associates, S.C., and the American Medical Supply Corporation (hereinafter collectively referred to as "Lewis") have filed a motion for reconsideration of our ruling of September 13, 1991. See Lewis v. Hermann, 775 F. Supp. 1137 (N.D. Ill. Sept. 13, 1991). In addition, Lewis now moves for leave to file a second amended complaint. For the reasons as set forth below, we deny both motions.

 I. Motion for Reconsideration

 It is settled law that motions for reconsideration "serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence." Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1985) (quoting Keene Corp. v. International Fidelity Ins. Co., 561 F. Supp. 656, 665-66 (N.D. Ill. 1982), aff'd, 736 F.2d 388 (7th Cir. 1984)). As such, a motion for reconsideration may not be employed as a vehicle to introduce new evidence that could have been produced prior to the entry of judgment. Id. "Nor should a motion for reconsideration serve as the occasion to tender new legal theories for the first time." Id.

 Lewis' first ground for reconsideration revolves around this court's retroactive application of the 1-and-3-year limitations period adopted in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 111 S. Ct. 2773, 115 L. Ed. 2d 321 (1991), and Short v. Belleville Shoe Mfg. Co., 908 F.2d 1385 (7th Cir. 1990), cert. denied, 111 S. Ct. 2887, 115 L. Ed. 2d 1052 (1991). Specifically, Lewis contends that the court did not address "plaintiffs' argument that the time-honored analysis in Chevron Oil v. Huson [404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971)] does not require that a plaintiff have actually relied on the prior precedent being overturned." Lewis, however, misinterprets our prior analysis. To be sure, this court did address Lewis' arguments under Chevron Oil, concluding, contrary to Lewis' position, that the application of the new rule to the litigants in both Short and Lampf dictated a retroactive application of the repose period to all pending actions. See Lewis, slip op. at 7-8 (citing both Chevron Oil and Charette v. Emanuel, No. 89-6497, slip op. (N.D. Ill. June 12, 1990) (applying Chevron Oil)). Indeed, the Supreme Court in Lampf applied the 1-and-3-year limitation retroactively to the litigation in which the new rule was announced despite the fact that the plaintiff had justifiably relied on Oregon's 2-year statute under state-borrowing principles. Lampf, 111 S. Ct. at 2782-83. As discussed in our order of September 13, 1991, the issue of reliance only arises as an exception to retroactive application in those rare cases where "a plaintiff learned of a claim within the three-year period, but, relying on existing law providing for a longer limitations period, elected to wait until after the three-year period before filing suit." Lewis, slip op. at 10 (quoting S & F Reply at 3). Accordingly, this court's analysis regarding the retroactivity of Lampf and Short does not afford Lewis with an opportunity for reconsideration.

 Second, Lewis claims that, in concluding that Charles Richards did not owe a fiduciary duty to the plaintiffs, this court "did not appear to consider the plaintiffs' argument that their allegation of Richards' role as an investment adviser to the plaintiffs created a fiduciary duty." Lewis is mistaken. In response to plaintiffs' argument, this court explicitly noted the Lewis had a "longstanding relationship of trust with Richards." Lewis, slip op. at 14. We, however, did not deem this relationship sufficient to establish a fiduciary duty. More to the point, we ultimately concluded that, "even assuming Richards was . . . a fiduciary, Lewis nevertheless has failed to additionally allege a basis from which we might infer that, having purportedly committed fraud in the sale of both investments, Richards . . . took measures to actively conceal the fraud from Lewis." Id. (emphasis supplied). In the absence of any manifest error of law or fact, reconsideration of whether Richards owed plaintiffs a fiduciary duty is not warranted.

 Lewis' next ground for reconsideration focuses on whether plaintiffs' allegations with respect to the La Villita, Pueblo Villas, and Houston Land investments were sufficient to allege loss causation. Lewis' current contention is limited to the assertion that

 
these allegations can be the basis for both transaction causation and loss causation in that neither La Villita, Houston Land, nor Pueblo Villas had a realistic chance of profit or success because the undisclosed commissions and conflicts of interest deprived each investment of the necessary funds to meet its financial commitments, including high levels of debt due to the highly leveraged nature of the investment and operating expenses.

 However, as noted by Lewis, the court expressly considered the plaintiffs' allegations concerning the undisclosed commissions and conflicts of interest, concluding that those allegations were insufficient to establish loss causation. Lewis, slip op. at 19 n.12. This mere reassertion of an argument previously considered in the September 13, 1991 order mocks the well-established standards for reconsideration. In re Stotler & Co., No. 91-1178, slip op. at 2 (N.D. Ill. Dec. 3, 1991) (A motion for reconsideration "serves no function at all if it is used merely to reiterate arguments previously raised."); Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983) (same); see also Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988) ("This Court's opinions are not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure.").

 In a similar vein, Lewis claims that, contrary to this court's assertion, see Lewis, slip op. at 20, plaintiffs did not concede that loss causation is an element of Counts II-VII. Rather, Lewis contends that footnote 8 in his response to Richards was merely an alternative argument that, if the court found that loss causation is an element of those claims, plaintiffs have satisfied it. We disagree. Footnote 8 states:

 
For the same reasons that plaintiffs have adequately alleged loss causation as to their claim under Section 10(b), plaintiffs have also adequately alleged loss causation for their claims under ERISA (Count II), common law fraud (Count III), the Illinois Securities Act (Count IV), the Illinois Consumer Fraud Act (Count V), breach of fiduciary duty (Count VI), and negligent misrepresentation (Count VII).

 This footnote is devoid of any language even remotely suggesting that this is an argument in the alternative. Further, the disingenuous nature of Lewis' current claim is highlighted by the fact that nowhere in his response did Lewis assert that loss causation is not an element of Counts II-VII.

 Finally, Lewis asks this court to reconsider our conclusions with regard to the aiding and abetting claims against the law firms Schwartz & Freeman ("S & F") and Much, Shelist, Freed, Denenberg, Ament & Eiger, P.C. ("Much Shelist"). As noted in our order dated September 13, 1991, both law firms' "liability for aiding and abetting ultimately must rest on a duty to disclose." Lewis, slip op. at 23. Lewis now suggests that "the court did not appear to address plaintiffs' argument that Barker [v. Henderson, Franklin, Starnes & Holt, 797 F.2d 490 (7th Cir. 1986)] is limited to the mere 'bystander' lawyer." However, as Lewis concedes, "the plaintiffs' briefs on the issue of aiding and abetting against [each firm] engaged in an extensive argument regarding the holding of Barker and its proper scope." As did plaintiffs, we too considered the scope to be afforded Barker ; we simply did not reach the same result. Based on the allegations of ...


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