The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on defendants' Flegles, Inc.
and Alice Mae Flegle's (collectively "Defendants") motion for
reconsideration. Additionally, before this court is Plaintiff
TruServ Corporation's ("TruServ") motion for summary judgment.
For the reasons stated below we deny Defendants' motion for
reconsideration. TruServ's motion for summary judgment as to
Count I and III are granted. In addition, we deny TruServ's
motion for summary judgment as to Count II and dismiss Count II
as moot. BACKGROUND
In 1948, TruServ was originally organized under the name Cotter
& Company. In 1997, Cotter & Company changed its name to TruServ.
Presently, TruServ is a nationwide hardware store cooperative
which supplies goods and services to True Value hardware stores
("Members"). TruServ's principal place of business is Chicago,
Illinois. Since at least 1976, Flegles, a Kentucky corporation,
has owned and operated a TrueValue hardware store in Kentucky.
Flegles has been a Member of Cotter & Company and/or TruServ
since that time and until February 18, 2003 when TruServ
terminated Flegles' membership.
On February 12, 2003, Flegles filed suit against TruServ in
Carlisle Circuit Court in Kentucky. Flegles claims that TruServ
made fraudulent misrepresentations to Flegles to induce Flegles
to continue as a member. Specifically, Flegles alleges that from
1997 to 2000 Flegles relied on misrepresentations made by TruServ
in making the decision to greatly expand Flegles' store. Flegles
claims that TruServ fraudulently concealed losses of over $131
million. Flegles also claims that TruServ made misrepresentations
in order to induce Flegles to forego redemption payments on its
member shares. In the Kentucky state court action Flegles is
seeking a declaratory judgment, declaring agreements between
TruServ and itself null and void thus relieving Flegles of its
obligation to pay its debts. Flegles also brought claims of fraud
and breach of contract.
After Flegles filed the lawsuit in Kentucky, TruServ terminated
Flegles' membership in TruServ. TruServ contends that it provided Flegles
with merchandise and services and Flegles has refused to pay for
them. TruServ accuses Flegles of manufacturing the
misrepresentation claims in order to file the action in Kentucky
state court despite the fact that the parties had an agreement
containing a forum selection clause to proceed in Illinois.
TruServ also accuses Flegles of adding an additional plaintiff to
the Kentucky case that serves no purpose other than to destroy
diversity jurisdiction and prevent TruServ from removing the
Kentucky case to federal court.
In the Kentucky state court case TruServ moved to dismiss based
on a forum selection clause in agreements between TruServ and
Flegles. On March 20, 2003, the state court judge denied the
motion to dismiss, finding that the forum selection clause is
unreasonable and that it should not be enforced.
On May 16, 2003, TruServ filed the instant action in which
TruServ seeks to recover for a breach of contract between TruServ
and Flegles and also seeks to enforce personal guarantees signed
by Alice Mae Flegle.
Previously, Flegles had filed a motion to dismiss or in the
alternative to stay proceedings in this case arguing that this
court should decline to exercise its jurisdiction based on the
doctrines of abstention and comity in light of the prior
proceedings in Kentucky state court. On November 24, 2003, in a
memorandum opinion, we denied that motion.
Defendants have now filed a motion seeking reconsideration of
our November 24, 2003 ruling and request that in the alternative we grant
certification for an interlocutory appeal. In addition, TruServ
has filed a motion for summary judgment.
I. Motion For Reconsideration
A motion for reconsideration may be brought "to correct
manifest errors of law or fact or to present newly discovered
evidence." Caisse Nationale de Credit Agricole v. CBI Indus.,
90 F.3d 1264, 1270 (7th Cir. 1996). Such motions cannot be
used as a "vehicle to produce new evidence that could have been"
produced earlier" or as a vehicle to reargue the same arguments
presented to the court on a prior occasion. Id.
II. Motion For Summary Judgment
Summary judgment is appropriate when the record reveals that
there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c). In seeking a grant of summary judgment the moving party
must identify "those portions of `the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P.
56(c)). This initial burden may be satisfied by presenting specific evidence on a
particular issue or by pointing out "an absence of evidence to
support the non-moving party's case." Id. at 325. Once the
movant has met this burden, the non-moving party cannot simply
rest on the allegations or denials in the pleadings, but, "by
affidavits or as otherwise provided for in [Rule 56], must set
forth specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e). A "genuine issue" in the context
of a motion for summary judgment is not simply a "metaphysical
doubt as to the material facts." Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp, 475 U.S. 574, 586 (1986). Rather, a
genuine issue of material fact exists when "the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty ...