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ENTERTAINMENT, INC. v. CITY OF NORTHLAKE

United States District Court, N.D. Illinois


June 2, 2004.

ENTERTAINMENT, INC. d/b/a ALL STARS and MICHAEL MICHALS, Plaintiff's,
v.
CITY OF NORTHLAKE, an Illinois Municipal Corporation, and JEFFREY SHERWIN, Mayor of Northlake, in his Official and Individual Capacities, Defendants

The opinion of the court was delivered by: JOHN GRADY, Senior District Judge

MEMORANDUM OPINION

Before the court are defendants' motions to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e) and to amend the complaint under Fed.R.Civ.P. 15(a). For the reasons stated below, both motions are denied.

BACKGROUND

  We presume familiarity with the facts, which are set out in detail in our December 29, 2003 opinion. Nonetheless, we briefly recap those relevant to our discussion here. All Stars, a nightclub, and its owner, Michael Michals, brought this 42 U.S.C. § 1983 action against the City of Northlake and its mayor, Jeffrey Sherwin, alleging that Northlake's annexation of All Stars' property, and the resulting subjection of All Stars to Northlake's zoning and liquor license ordinances, violates plaintiffs' First and Fourteenth Amendment rights. The complaint states that in August 2000, Northlake passed an ordinance annexing All Stars' property, which previously was located in unincorporated Cook County. Plaintiff's averred two injuries from the annexation. First, Northlake's zoning ordinances prohibited All Stars from structurally altering or improving its facilities, thereby thwarting All Stars' expansion and remodeling plans. Second, Northlake's liquor license ordinance, a more restrictive law than its Cook County counterpart, required All Stars to cut back its hours of operation. The restricted hours "severely reduced" All Stars' revenue. According to the complaint, these legislative measures were part of a larger scheme by defendants to put All Stars out of business.

  Defendants moved to dismiss the complaint and argued, among other things, that the complaint was barred by the statute of limitations. We agreed, and on December 29, 2003, entered a judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) in favor of defendants.*fn1 On January 12, 2004, Plaintiff's filed a motion to reconsider and a motion for leave to amend the complaint. LEGAL STANDARDS

  The Federal Rules of Civil Procedure do not recognize a motion to reconsider in haec verba, but the Seventh Circuit has made clear that a motion to reconsider a dispositive pretrial order is evaluated under either Rule 59(e) or Rule 60(b). See United States v. Deutsch, 981 F.2d 299, 300-01 (7th Cir. 1992). And, at least in this circuit, which rule applies depends entirely on when the motion is filed. See Romo v. Gulf Stream Coach, 250 F.3d 1119, 1121 n. 3 (7th Cir. 2001). If filed within ten days of the entry of judgment, it is deemed a Rule 59(e) motion; if filed more than ten days after judgment, it is characterized as a Rule 60(b) motion. See id. Plaintiffs' motion was filed within ten days of our entry of judgment, excluding weekend days and legal holidays (see Fed.R.Civ.P. 6(a); Cange v. Stotler and Co., 913 F.2d 1204, 1212-13 (7th Cir. 1990)), so we evaluate it under Rule 59(e).

  Motions to reconsider brought under Rule 59(e) serve the limited functions of correcting manifest errors of law, presenting newly discovered evidence, or alerting the court to an intervening change in the law. See Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998). The Rule is designed to nip legal errors in the bud, thereby sparing the parties and the courts of appeal the burden of unnecessary appellate proceedings. See Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995). However, Rule 59(e) is not a mechanism through which a party may undo its own procedural failures. The Rule "is not appropriately used to advance arguments or theories that could and should have been made before the district court rendered a judgment, or to present evidence that was available earlier." See LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995). Whether to grant or deny a motion to reconsider under Rule 59(e) is "entrusted to the sound judgment of the district court." Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996),

  Plaintiff's also seek to amend their complaint. Rule 15(a) provides a plaintiff, as a matter of right, one opportunity to amend the complaint before a responsive pleading is filed. Fed.R.Civ.P. 15(a). However, if a final judgment dismissing the complaint has been entered, the plaintiff's right to amend is forfeited, and amendment will be allowed only if the judgment is set aside or vacated pursuant to Rule 59(e) or 60(b). See Car Carriers. Inc. v. Ford Motor Co., 745 F.2d 1101, 1111-12 (7th Cir. 1984).

  DISCUSSION

  By their motion to reconsider, Plaintiff's seek to "clarify" certain allegations in the complaint regarding when, and even whether, All Stars was subject to Northlake's zoning and liquor license ordinances. With respect to the zoning ordinances, the complaint's averment that "All Stars has been re-zoned into the City of Northlake in the most restrictive R-1 single family residential use classification" (Compl., ¶ 14) was, according to Plaintiff's, "pled in error." See Counsel Aff., filed in support of Mot, to Recon, p. 1, ¶ 4. Plaintiffs' counsel now states: "Based on the research I have conducted to date, it appears that no rezoning, in fact, has taken place." See id., p. 2, ¶ 5. As for Northlake's liquor license ordinance, the complaint alleged that "Plaintiff's business hours were limited upon incorporation into the Village from 4:00 a.m. to 2:00 a.m., upon all days but Friday and Saturday, and then to 3:00 a.m." See Compl., ¶ 41 (emphasis added). Plaintiff's now maintain this allegation was "inartfully drafted," and proffer that their business hours actually did not change upon incorporation in August 2000, but rather eight months later, when All Stars received its liquor license from Northlake on April 27, 2001. See Counsel Aff., p. 3, ¶ 12.

  Plaintiff's therefore seek reconsideration of this court's decision on the ground that, when viewed in the light of their newly-minted allegations, it was based on "a manifest error of fact and law."*fn2 See Romo, 250 F.3d at 1121 n. 3 ("Rule 59(e) requires that the moving party clearly establish a manifest error of law or an intervening change in the controlling law or present newly discovered evidence."). Plaintiff's misapprehend the "manifest error" basis for relief. In determining whether we committed error, we evaluate our opinion on the record as it existed at the time of the decision, and do not, as Plaintiff's suggest, consider asserted facts in addition to or different from those then before us. And Plaintiff's do not argue, and we do not find, that our decision was incorrect based on the record at the time our decision was rendered. In short, we find no "manifest error."

  Plaintiff's also argue, if implicitly, that we should consider their post-judgment submissions because they are newly discovered. See Reply Br., p. 6 ("Plaintiffs' fault can be explained by unfortunate drafting and the fact that [plaintiffs'] have not yet conducted discovery.") (emphasis added). "Newly discovered evidence" will be received on a motion to reconsider only if the movant shows that he could not with reasonable diligence have discovered and produced the evidence during the pendency of the prior motion. See Caisse Nationale de Credit Agricole v. CBI Indus., 90 F.3d 1264, 1269-70 (7th Cir. 1996). We need not tarry long here. On the question of when All Stars' hours of operation were actually impacted by Northlake's liquor license ordinance, plaintiffs' counsel simply had to pick up the telephone and ask his client. Regarding whether All Stars had been re-zoned into a more restrictive classification, counsel needed only inquire of Northlake city hall to determine whether a re-zoning ordinance, a matter of public record, had been passed. In other words, all the evidence underlying plaintiffs' new allegations was available to them through the exercise of reasonable (or more likely, any) diligence before they even filed their complaint, let alone before this court entered judgment.

  Plaintiffs' motion is not about "manifest error" or "newly discovered evidence." It is simply plaintiffs' attempt to use Rule 59(e) as a means to resuscitate their claims with evidence and allegations that were readily available long before judgment was entered. But it is black-letter law that the Rule cannot be used for such purposes. See Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996) ("The Rule does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance new arguments that could and should have been presented to the district court prior to the judgment."); 11 Charles Wright, Arthur Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2810.1, at 127-28 (2d ed. 1995) (same); 12 Moore's Federal Practice § 59.30 [6] (3d ed. 1998) (Martin H. Redish, ch. ed.) (same). In sum, relief under Rule 59 is unavailable to these Plaintiffs.*fn3 Finally, because we decline to reopen our final judgment under Rule 59(e), plaintiffs' motion for leave to amend their complaint is likewise denied. See Helm v. Resolution Trust Corp., 84 F.3d 874, 879 (7th Cir. 1996); Vicom, Inc. v. Harbridge Merchant Services, 20 F.3d 771, 784 (7th Cir. 1994).*fn4

  CONCLUSION

  For the foregoing reasons, plaintiffs' motions to alter or amend the judgment and to amend the complaint are both denied.


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