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PICKETT v. PRINCE

May 7, 1998

FERDINAND PICKETT, Plaintiff,
v.
PRINCE, Defendant.



The opinion of the court was delivered by: SHADUR

MEMORANDUM OPINION AND ORDER

 This Court's December 17, 1997 memorandum opinion and order ("Opinion") granted the Fed. R. Civ. P. ("Rule") 56 motion by Ferdinand Pickett ("Pickett") that had called for dismissal of the counterclaim of Prince Rogers Nelson ("Nelson") charging Pickett with the infringement of Nelson's recently registered copyright (the "Embellished Symbol Copyright"). That counterclaim ("July Counterclaim") had not been filed by Nelson until early July 1997, shortly after Nelson had first registered the Embellished Symbol Copyright with the Copyright Office (on June 27, 1997), having just received an assignment of rights from Elizabeth Schoening ("Schoening") dated June 20, 1997.

 On January 6, 1998 Nelson filed a motion for reconsideration of the Opinion, after which the parties submitted memoranda on the subject (a further memorandum from Nelson, followed by Pickett's memorandum in opposition). For the reasons stated in this memorandum opinion and order, Nelson's motion is denied.

 Forfeiture

 In principal part Nelson now attempts to seize on the fact (though not at all mentioned by Nelson during the extensive briefing and other submissions on Pickett's Rule 56 motion, and hence not remarked by this Court in the Opinion) that July 5, 1997--the third anniversary of the date by which Nelson must be considered to have been on notice of Pickett's claimed infringement of the Embellished Symbol Copyright--fell on a Saturday, so that a July 7 filing of Nelson's Counterclaim would have been timely because of the operation of Rule 6(a). *fn1" But that argument fails as a matter of law because it simply comes too late: Nelson's failure to have advocated his present contention at the time that he should unquestionably have done so--when Pickett's motion for summary judgment on the Counterclaim was fully briefed and supported and ready for the decision that followed--constitutes a forfeiture of that argument, which must be viewed as a nonallowable afterthought at this point.

 It scarcely need be said that Pickett's motion for summary judgment was thoroughly advanced by Pickett and thoroughly opposed by Nelson. Yet in all of that paper presentation, Nelson's only argument that he tendered to this Court on the subject of limitations was to plump for the relation back of his July-filed Embellished Symbol Counterclaim to the January 1997 date on which he had impermissibly presented a counterclaim ("January Counterclaim") for the infringement of a registered copyright owned by someone else. There was not even a whisper to suggest the argument that Nelson now proffers, an argument that would have rendered it totally irrelevant whether he was or was not entitled to have the July Counterclaim relate back to the filing date of the January Counterclaim under Rule 15(c). *fn2"

 This Court has long applied the doctrine that emphasizes the extremely limited role that is played by motions to reconsider filed by losers in summary judgment proceedings (see, e.g., its opinion in Keene Corp. v. International Fidelity Ins. Co., 561 F. Supp. 656, 665-66 (N.D. Ill. 1982)). And our Court of Appeals too has long adhered to that selfsame doctrine: see its opinion in Keene, 736 F.2d 388, 393 (7th Cir. 1984), not only affirming but expressly adopting this Court's statement on the subject.

 Following that express adoption of Keene, the Court of Appeals has repeatedly quoted its language in applying the identical principle--see, e.g., such cases as Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1985); Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987); Caisse Nationale De Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996); and cf. such cases as Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 404 (7th Cir. 1986)(citing to the Keene quotation, though not repeating it verbatim).

 Indeed, Publishers Resource, 762 F.2d at 561 not only quoted Keene but in doing so specially emphasized this portion of the quotation, which is squarely applicable to the present case:

 
Nor should a motion for reconsideration serve as the occasion to tender new legal theories for the first time.

 Accord, such cases as Manor Healthcare Corp. v. Guzzo, 894 F.2d 919, 922 n.4 (7th Cir. 1990), quoting the same language that Publishers Resource had quoted from Keene.

 There are of course powerful policy considerations, not just technical rules, that support such a consistently applied doctrine. Because a Rule 56 motion (unlike, say, a Rule 12(b)(6) motion) is really the equivalent of a trial--but one in which the movant asserts that there are no genuine issues of material fact that require a decision in factual terms--the loser should no more be entitled to adduce new facts or legal theories that were readily available earlier than a loser at trial can do so after the case is over and the verdict is in. That concept has been succinctly summarized by our Court of Appeals in Caisse Nationale, 90 F.3d at 1270, quoting another of this Court's opinions ( Employers Ins. of Wausau v. Bodi-Wachs Aviation Ins. Agency, 846 F. Supp. 677, 685 (N.D. Ill. 1994)):

 
A party seeking to defeat a motion for summary judgment is required to "wheel out all its artillery to defeat it."

 Accord, such further cases as Havoco of Am., Ltd. v. Sumitomo Corp. of Am., 971 F.2d 1332, ...


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