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.
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
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
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
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.
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"
(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 ...