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INDUCTAMETALS CORP. v. ARENT FOX KINTNER PLOTKIN & KAHN

January 23, 2004.

INDUCTAMETALS CORP., Plaintiff/Counter-Defendant
v.
ARENT FOX KINTNER PLOTKIN & KAHN, LLC, Defendant/Counter-Plaintiff vs. INDUCTAMETALS CORP., ACME WINDOW COVERINGS, LTD., THEODORE KRENGEL AND JOSHUA KRENGEL, Counter-Defendants



The opinion of the court was delivered by: SIDNEY SCHENKIER, Magistrate Judge

MEMORANDUM OPINION AND ORDER

On January 9, 2004, this Court issued a Memorandum Opinion and Order ("Order") granting the motion for partial summary judgment filed by Arent Fox against Inductametals Corporation ("IDM") on counts II and III of IDM's complaint (doc. #65). In response, IDM has now filed a motion for reconsideration, asking that the Court withdraw its summary judgment order and to strike certain assertions of fact by Arent Fox in its reply submission on summary judgment. For the reasons that follow, IDM's motion for reconsideration is denied.

I.

  Motions to reconsider "should not be a `Pavlovian Response' to an adverse ruling." Jefferson v. Security Pacific-Financial Services, Inc., 162 F.R.D. 123, 125 (N.D.Ill. 1995). A motion for Page 2 reconsideration is not "a vehicle by which a party may seek `to undo its own procedural failures or to introduce new evidence or advance arguments that could have and should have been presented to the District Court prior to the judgment.'" Kalis v. Colgate Palmolive Co., No. 95 C 7633, 1999 WL 417463, *1 (N.D. Ill. June 17, 1999) (quoting Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996)). Rather, a motion to reconsider is appropriate where the Court "has made a decision outside the adversarial issues presented to the Court by the parties;" has applied the incorrect legal standard; or has made "an error not of reasoning but of apprehension." Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1999). See also Kinesoft Development Corp. v. Softbank Holdings Inc., No. 99 C 7428, 2001 WL 197631, *1 (N.D.Ill. Feb. 17, 2001). Whether to grant a motion to reconsider is a matter committed to the sound discretion of the Court. Caisse Nationale de Credit v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996).

  IDM raises three arguments in support of its motion. First, IDM claims that the Court "erroneously relied on Arent Fox's improperly submitted allegations [in response to paragraph 1 of IDM's 56.1(b)(3)(B) Statement of Additional Facts] in reaching its conclusions": specifically, that "IDM's only antitrust counterclaim did not accrue until May 2001" (IDM's motion, at 6 (citing Order, at 14-15)). Second, IDM argues that the Court's decision "misapprehends prevailing Fourth Circuit law regarding compulsory counterclaims" (IDM's Motion, at 7). Third, IDM asserts that the Court "misapprehends key facts and erroneously views certain evidence in a light unfavorable to IDM" (IDM's Motion, at 9). We address each argument seriatim. Page 3

  A.

  Rule 56.1 of the Local Rules for the Northern District of Illinois states that a party opposing summary judgment may file "a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon." N.D. ILL. LR 56.1(b)(3)(B). The Local Rules further provide that if a statement of additional facts is submitted by the opposing party, then "the moving party may submit a concise reply in the form of prescribed in that section for a response." N.D. ILL. LR 56.1(b)(3)(B). The Local Rules also provide that if a statement of additional facts is submitted by the opposing party, "the moving party may submit a concise reply in the form prescribed in that section for a response." N.D. ILL. LR 56.1(a)(3)(B). Any material facts set forth in the statement of additional facts filed by an opposing party under Section (b)(3)(B) "will be deemed admitted unless controverted by the statement of the moving party." (Id.)

  In response to Arent Fox's summary judgment motion, IDM filed a statement of additional facts as permitted by LOCAL RULE 56.1(b)(3)(B). Paragraph 1 of that additional statement made the following assertion:

  Despite Arent Fox's statements to the contrary, IDM's defenses and potential causes of action against Xaloy were not still viable at the time IDM replaced Arent Fox with Jenner & Block. See Affidavit of Matthew M. Neumeier ("Neumeier affidavit"), attached as Exhibit A, at ¶ 3. When Jenner & Block entered the litigation, IDM was in default of its pretrial disclosure obligations because Arent Fox had failed to make the required disclosure regarding witness lists, including experts; had failed to serve IDM's responses to Xaloy's contention interrogatories despite a Court order tod do so; had failed to disclose any support for IDM's defenses; and had failed to file or pursue any counterclaims on IDM's behalf. See id. at ¶ 3a. Page 4

 IDM's Rule 56.1(b)(3)(B) Statement of Additional Facts, ¶ 1. In response to that assertion, Arent Fox denied the allegations, and then set forth an explanation of the factual basis for the denial:

  There is no evidence in the record demonstrating that IDM's defenses and potential causes of action against Xaloy were not still viable at the time IDM replaced Arent Fox with Jenner & Block. To the contrary, undisputed facts demonstrate that IDM's defenses and potential counterclaims continue to be viable following Judge Turk's June 8 order, which continues the trial date and gave IDM unspecified additional time to complete discovery. DSMF, Ex. 27. Consistent with these facts, Jenner & Block asserted its available affirmative defenses to successfully oppose Xaloy's motion for preliminary injunction, in expert reports IDM provided Xaloy, and in the mediation brief IDM submitted to the Magistrate Judge. PL's Rule 56.1 Resp, at ¶¶ 19-21, 23, 25. Moreover, the only potential counterclaim or cause of action available to IDM in the in Xaloy litigation was an antitrust claim (which IDM alleges was based on Xaloy's "conduct in the marketplace") that did not accrue until May 24, 2001 — one week after IDM was replaced. DSMF Ex. 7, J. Krengel Dep. at 15 8-59, Ex. 1, ¶ 26. And as IDM admits, it representing to the Court in a contemporaneous pleading governed by Rule 11 that it intended to pursue such a claim following the Xaloy litigation. Pl.'s Rule 56.1 Resp, at ¶ 25.

 
Answering further, the allegations of Mr. Neumeier's affidavit — on which the alleged facts stated in paragraph 1 are entirely based — are conclusory in nature and unsubstantiated by facts or record evidence. As a matter of law, Mr. Neumeier's affidavit is insufficient to create a genuine issue of material fact under Federal Rule of Civil Procedure ("FRCP") 56. See Def. Reply Mem. in Supp. at pp. 5-6. Arent Fox further objects to the allegations of paragraph 1 on the ground that IDM has precluded discovery and to the allegations of Mr. Neumeier's affidavit by asserting the attorney-client privilege over Mr. Neumeier's opinion and understanding of the alleged facts stated therein. DSMF, Ex. 5, T. Krengel Dep. at 230-32, 234, 236-38; Ex. 7, J. Krengel Dep. at 41-42, 76-77, 181-82, 183, Arent Fox denies the remaining allegations of paragraph 1.
Arent Fox's Response to IDM's Rule 56.1(b)(3)(B) Statement of Additional Facts, ¶ 1.

  IDM claims that this response by Arent Fox violated Local Rule 56 by alleging "new facts, namely, that IDM had only one available antitrust counterclaim that did not accrue until May 2001" Page 5 (IDM's Motion, at 5), and because the response "argued facts — rather than responding concisely as required by Local Rule 56.1" (Id.). For the following reasons, we reject those arguments.

  First, we are not persuaded that Arent Fox violated Rule 56.1 in the way that it responded to paragraph 1 of IDM's statement of additional facts (and we note that IDM does not point to any alleged impropriety with respect to any of Arent Fox's responses to IDM's thirteen other statements of additional facts). While there is some argumentation in Arent Fox's response, we do not believe it is excessive or materially different from the level of argumentation contained in IDM's Rule 56 statements — and, in any event, in deciding the summary judgment ...


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