The opinion of the court was delivered by: CHARLES NORGLE, District Judge
Before the court is Edward Theobald's motion, styled "Motion to
Vacate or Amend the May 4, 2004 Judgment and Demand for a Hearing on the
Merits," brought pursuant to Federal Rules of Civil Procedure 59(a),
59(e) and 61. For the following reasons, the motion is denied.
In an order dated October 2, 2003, the court advised and gave notice to
attorneys Edward R, Theobald, Alan R. Brunell and Anthony Pinelli
(collectively "counsel") that the court intended to proceed on a Rule to
Show Cause as to why sanctions should not issue. See Minute
Order of October 2, 2003 [docket entry 116-1]. In that order the court
stated that a Rule to Show Cause would be issued expeditiously. On
October 8, 2003, the court issued the Rule to Show Cause, detailing the
allegedly sanctionable conduct of counsel, and allowed counsel 45 days to
respond in writing. See Rule to Show Cause [docket entry
117-1], On November 24, 2003, counsel filed their responses to the Rule to Show
Cause, as well as numerous motions to dismiss the Rule to Show Cause and
a motion for recusal. On March 29, 2004, the court denied counsels'
motions to dismiss the Rule to Show Cause and the motion for recusal.
See Schmude v. Sheahan, F. Supp.2d ,
2004 WL 718501 (N.D. Ill. March 29, 2004). In that order the court
proceeded to find that counsels' conduct was sanctionable, stating:
The court finds that attorneys Edward R. Theobald,
Alan R. Brunell and Anthony Pinelli have disobeyed
the orders of the United States District Court and
acted improperly by seeking and obtaining numerous
awards of attorney fees, as improperly appointed
counsel, in the Circuit Court of Cook County,
after the entire cause of action had been removed
to the United States District Court. Further,
counsel proceeded with that conduct after a motion
to remand had been denied, while that issue of
remand was on appeal in the Seventh Circuit and
after the Seventh Circuit's decision, after they
were aware that the court was handling issues of
appointments and awards of attorney fees pursuant
to 55 Ill. Comp. Stat. § 5/3-9008 for other
attorneys in the case, and despite the court's
repeated admonitions that further litigation in
the state court would be in contravention of the
federal court's jurisdiction and improper.
Additionally, the court finds that the statements
and actions of each attorney violated their duty
of candor to the court. The sanctionable conduct
of each officer of the court was willful,
intentional and repeated, and was an attempt to
circumvent the United States District Court's
removal jurisdiction. Attorneys Edward R.
Theobald, Alan R. Brunell and Anthony Pinelli are
hereby sanctioned pursuant to the court's inherent
Id. at *43. The court sanctioned counsel, ordering
disgorgement of all improperly acquired attorney fees and payment of a
$5,000,00 fine. See id. at *44. To begin the process
of disgorgement, the court ordered that counsel file "a detailed
accounting of all fees requested and received in the Circuit Court of
Cook County which relate to this civil matter, including copies of all
pleadings filed by counsel, orders entered by the Circuit Court of Cook
County, and all fee petitions submitted to date" within 28 days of the
court's order. See id. The court stated that "[o]nce counsel
submit such accountings, the court will enter an order requiring counsel
to disgorge those improperly acquired attorney fees in a specific
dollar amount to the source of such funds by May 28, 2004." Id.
Subsequent to the order finding counsels' conduct to be sanctionable,
yet prior to a determination of the final amount of the sanction, counsel
filed motions for the court to reconsider its March 29, 2004 order.
Counsels' motions were brought pursuant to Federal Rules of Civil
Procedure 59(a) and 59(e), or in the alternative, 60(b). On April 23,
2004, the court denied these motions as, inter alia, untimely.
See Opinions of April 23, 2004 [docket entries 160-1; 166-1;
171-1]. In the decisions denying these motions, the court stated that the
March 29, 2004 order was interlocutory because the amount of the sanction
had yet to be determined, and as such relief under Rules 59 or 60 was
inappropriate. See id.
On April 26, 2004, counsel submitted their court-ordered accountings.
On May 4, 2004, the court entered a Final Judgment Imposing Sanctions
Against Anthony Pinelli, Alan R. Brunell and Edward R. Theobald ("Final
Judgment"). See Schmude v. Sheahan, et al.,
F. Supp.2d , 2004 WL 1045798 (N.D. Ill. May 4, 2004). The court
ordered counsel to pay a sanction of $5,000.00 to the Clerk of the United
States District Court for the Northern District of Illinois by May 28,
2004. See id at *40. The court also imposed the sanction of
disgorgement in a sum certain as to each attorney, ordering counsel to
disgorge those amounts of improperly obtained attorney fees to Cook
County by May 28, 2004, and to certify compliance with the court's order
by June 14, 2004. See id Lastly, the court also "enjoined
[counsel] from seeking attorney fees or receiving remuneration from Cook
County for their representation of their clients in this case or for
defending themselves against the Rule to Show Cause and resultant
proceedings." Id. The court also indicated that in order to ensure compliance with the
court's orders, the injunction would be reviewed at six-month intervals
from the date of entry of judgment. See id.
On May 17, 2004, attorney Theobald filed the instant motion, seeking
relief from the court's Final Judgment, pursuant to Federal Rules of
Civil Procedure 59(a), 59(e) and 61. Reiterating arguments previously
addressed by the court, attorney Theobald claims that relief under
Rule 59(e) is appropriate because the court has committed manifest errors of
law and fact. Additionally, attorney Theobald argues that the court has
committed a manifest error of law and fact through the issuance of the
order enjoining further attempts to seek attorney fees or receive
remuneration from Cook County with respect to this case, which was
entered to ensure compliance with the court's orders. As discussed more
fully below, the court finds these arguments to be without merit.
A. Edward Theobald's Motion for a Hearing on the Merits
Standard of Decision under Federal Rule of Civil Procedure
The court has previously denied Edward Theobald's Motion for a Hearing
on the Merits. See Opinion of April 23, 2004 [docket entry
166-1]. As the court previously stated, Federal Rule of Civil Procedure
59(a) is concerned with motions for a new trial. See
Fed.R.Civ.P. 59(a). A Rule 59(a) motion is inappropriate when a case, such as
this,*fn1 has been decided on the pleadings. See, e.g., Jones v.
Nelson, 484 F.2d 1165, 1167 (10th Cir. 1973) (indicating that motion
for new trial, seeking relief from an adverse ruling on summary judgment
"[t]echnically . . . was improper as no trial was conducted from which a
new trial motion could be filed"). The logic is simple: no initial trial,
no new trial. In such cases, relief should be sought by a motion to alter
or amend the judgment pursuant to Federal Rules of Civil Procedure 59(e)
or 60(b), depending upon when the motion is filed. See 3
Motions in Federal Court § 9.40 at 91 (3d ed. 1996 &
2003 supp.). Thus, attorney Theobald's motion brought pursuant to
Rule 59(a) is denied. The court will now address the remaining arguments
raised by the instant motion.
B. Edward Theobald's Motion to Vacate or Amend the May 4,
2004 Judgment Standard of Decision under Federal Rules of Civil
Procedure 59(e) and 61
Attorney Theobald's motion asks the court to vacate its May 4, 2004
Final Judgment Imposing Sanctions Against Anthony Pinelli, Alan R.
Brunell and Edward R. Theobald.*fn2 As a preliminary matter the instant
motion indicates that it is brought pursuant to Federal Rules of Civil
Procedure 59(e) and 61. Rule 61 provides that the court must disregard
harmless error. See Fed.R.Civ.P. 61. Aside from citing the rule
generally, the motion states: "Any alleged error is harmless as Mr.
Theobald's conduct did not substantially affect the rights of the
parties." Theobald Mot., at 15. This argument is undeveloped, and further
miscomprehends the nature of sanction proceedings. Rule 61 is
inapplicable, and the court will address the motion pursuant to
The instant motion, brought pursuant to Federal Rule of Civil Procedure
59(e), was filed on May 17, 2004, which is within the 10 day period of
Rule 59(e).*fn3 See Fed.R.Civ.P. 59(e) ("Any motion to
alter or amend a judgment shall be filed no later than 10 days after
entry of the judgment."); see also Fed.R.Civ.P. 6(a)
(discussing computation, of time). Thus, attorney Theobald's instant
motion (his second motion for reconsideration) is properly brought
pursuant to Rule 59(e). See Mendenhall v. Goldsmith,
59 F.3d 685, 689 (7th Cir. 1995); see also Britton v. Swift Transp. Co.,
Inc., 127 F.3d 616, 618 (7th Cir. 1997).
The Seventh Circuit has repeatedly cautioned that "[m]otions to
reconsider serve a limited function . . ." See Publishers Resource
v. Walker-Davis Publications, 762 F.2d 557, 561 (7th Cir. 1985).
"The only grounds for a Rule 59(e) motion. . . are newly discovered
evidence, an intervening change in the controlling law, and manifest
error of law." Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th
Cir. 1998); see also Russell v. Delco Remy Div. of General Motors
Corp., 51 F.3d 746, 749 (7th Cir. 1995). "The rule essentially
enables a district court to correct its own errors, sparing the parties
and the appellate courts the burden of unnecessary appellate proceedings." Russell, 51 F.3d at 749. However,
the law is clear that Rule 59(e) motions are not the proper vehicles for
revisiting issues and recapitulating arguments that were decided by the
court before rendering its original decision. See, e.g.,
In re Oil Spill by "Amoco Cadiz" Off Coast of France on March 16.
1978, 794 F. Supp. 261, 267 (N.D. Ill. ...