United States District Court, N.D. Illinois, Eastern Division
CHRISTOPHER RUSS, et al., Plaintiffs,
VAN WATTS, et al., Defendants.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Plaintiffs' motion for
clarification and motion for reconsideration. For the reasons
stated below, we enter final judgment dismissing the claims
brought by Russ' siblings and deny the motion for
Watts, Banaszkiewicz, and Helson are police officers that work
for the City of Chicago ("City"). On June 5, 1999, Banaszkiewicz
claims that he spotted a car being driven by Robert Russ ("Russ")
which cut across two lanes of traffic and nearly collided with two motorcyclists. Banaszkiewicz claims that
he pulled behind Russ' car and turned on his blue lights.
According to Banaszkiewicz, Russ did not stop until he reached a
red light. Banaszkiewicz claims that he was wearing his uniform
and that he exited his vehicle and knocked on the driver's side
window of Russ' car, but Russ ignored him and when the light
changed to green, Russ proceeded onward. Helson, who was driving
home from a part-time security job, claims that he saw Russ start
off with the green light, leaving Banaszkiewicz behind.
Banaszkiewicz called for backup and Watts was called in to assist
in the pursuit. A chase ensued and Russ finally stopped when he
collided with other Chicago Police vehicles.
Banaszkiewicz and Helson approached the passenger's side window
and Watts approached the driver's side of the car. Helson claims
that he managed to crack open the passenger's side door and was
able to calmly tell Russ that he was surrounded and that "he was
not helping himself." Watts then broke the rear driver's side
window of the car. Defendants claim that Russ reacted by reaching
for Watts' gun. Defendants claim that Russ grabbed Watts' gun and
after a few seconds of a struggle the gun discharged, killing
Russ. At the time of his death Russ was twenty-two years old and
was a student at Northwestern University.
The administrator of Russ' estate brought a suit against Watts
and the City on behalf of Russ' son, Robert Russ Jr., and the child's mother Erin
Lewis ("Lewis") in Illinois state court for wrongful death and
survival. A jury awarded Russ' estate $9.6 million. In the
instant case, the Plaintiffs are Russ' parents and siblings who
brought claims against the City, Watts, Banaszkiewicz, and
Helson. Plaintiffs include in their amended complaint two
substantive due process claims alleging violations of
42 U.S.C. § 1983 ("Section 1983") based on a severance of family
relationships between Russ and his parents and Russ and his
siblings (Counts I and II). Plaintiffs also brought a Section
1983 failure to prevent the use of excessive force claim (Count
III), a Section 1983 conspiracy claim (Count IV), and a Section
1983 Monell claim against the City. Russ' siblings also allege
violations of 42 U.S.C. § 1985 ("Section 1985") involving an
alleged conspiracy to deny Russ' siblings access to the court
system (Count VI). On March 15, 2002, Judge Gettleman, the prior
judge in this case, granted Defendants' motion to dismiss all of
the Section 1983 claims brought by Russ' siblings because his
siblings did not have standing (Count II). Judge Gettleman also
granted Defendants' motion to dismiss Russ' siblings' Section
1985 claims (Count VI). On April 30, 2004, Plaintiffs voluntarily
dismissed the Monell claim against the City (Count V). The
remaining defendants filed motions for summary judgment and on
June 17, 2004, we granted the remaining defendants' motions for
summary judgment in their entirety and judgment was entered on the record on June 18, 2004. On July 2,
2004, Plaintiffs filed a motion to alter and vacate the June 18,
Rule 59(e) permits parties to file, within ten days of the
entry of a judgment, a motion to alter or amend the judgment.
Fed.R. Civ. P. 59(e); Fed.R. Civ. P. 6(a). Rule 59(e) motions
do not give a party the opportunity to rehash old arguments or to
present new arguments "that could and should have been presented
to the district court prior to the judgment." Moro v. Shell Oil
Co., 91 F.3d 872, 876 (7th Cir. 1996) (citing LB Credit Corp.
v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)).
Rather, a Rule 59(e) motion "must clearly establish either a
manifest error of law or fact or must present newly discovered
evidence" in order to be successful. LB Credit Corp.,
49 F.3d at 1267 (quoting Federal Deposit Ins. Corp. v. Meyer,
781 F.2d 1260, 1268 (7th Cir. 1986)). The decision of whether to grant or
deny a Rule 59(e) motion "is entrusted to the sound judgment of
the district court. . . ." In re Prince, 85 F.3d 314, 324 (7th
Cir. 1996). DISCUSSION
I. Motion For Clarification
Plaintiffs seek clarification of our ruling on June 17, 2004,
granting summary judgment in favor of the remaining defendants on
claims brought by Russ' parents. Plaintiffs contend that when
Judge Gettleman dismissed the claims brought by Russ' siblings,
Judge Gettleman did not make a determination regarding whether or
not Russ' siblings could bring an immediate appeal. Plaintiffs
argue that there is technically not a final judgment as defined
under Federal Rule of Civil Procedure 54(b). To the extent that
there is not a final and appealable judgment dismissing the
claims brought by Russ' siblings we enter final judgment at this
II. Motion To Reconsider
Plaintiffs do not base their motion for reconsideration upon
any of the acceptable bases for a motion for reconsideration.
Plaintiffs argue merely that this court should re-evaluate its
prior ruling. However, a motion for reconsideration is not a
vehicle that can be used to take a second pass at a ruling to see
if the court will rule differently the second time around. See
Moro, 91 F.3d at 876 (stating that Rule 59(e) motions do not
give a party the opportunity to rehash old arguments or to present new arguments "that could and should have been presented
to the district court prior to the judgment.").
Plaintiffs have inappropriately raised arguments that they
raised in their response to the motions for summary judgment and
arguments that they could have raised in response to the motions
for summary judgment. For instance, Plaintiffs argue that there
is sufficient evidence to dispute Watts' and Banaszkiewicz's
statement of fact number 13. However, Plaintiffs fail to address
the analysis in our prior ruling and Plaintiffs attempt to point
to evidence that Plaintiffs did not refer to in their answer
briefs to Defendants' motions for summary judgment.
Plaintiffs fail to address Local Rule 56.1 and the effects of
Plaintiffs' 56.1 response under that rule which we discussed in
our prior ruling. We explained in our prior ruling that we were
not merely making findings based upon meaningless procedural
technicalities because a court is not "obliged in our adversary
system to scour the record looking for factual disputes and may
adopt local rules reasonably designed to streamline the
resolution of summary judgment motions." Waldridge v. American
Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994). Statement
of fact 13 reads as follows: "Robert Russ and Erin Lewis
discussed moving into [sic] together to raise their son." In
their 56.1 response to statement of fact 13 Plaintiffs merely
pointed to Vera Love's ("Love") claim that Russ only had sexual
relations with Lewis once and Russ was not sure if Lewis' child was his own.
Plaintiffs also state in their 56.1 response to statement of fact
13 that Russ never indicated that he was going to move in with
Lewis. Whether or not Russ thought Lewis was carrying his child,
the frequency of sexual relations between Russ and Lewis, and
whether or not Russ indicated he was going to move in with Lewis,
do not in any way address statement of fact 13 which indicates
that Russ and Lewis discussed moving in together. Thus,
Plaintiffs' response does not directly respond to the asserted
Plaintiffs also contend that they provided sufficient citations
simply because they made reference to "Exhibit 22" and Plaintiffs
now attempt to cite pertinent portions of the exhibit such as
pages 73, 79 and 80 of the exhibit in response to the allegations
regarding Russ and Lewis moving in together. (Mot. Recon. 7).
Such citations could have and should have been provided in
Plaintiffs 56.1 response and the court was not obligated to scour
Exhibit 22 to find out whether or not a portion created a
legitimate dispute. Absent justification for Plaintiffs' delay, a
motion for reconsideration is not the proper juncture to raise
these points and citations. Also, Plaintiffs' citation to Exhibit
22 was merely in support of Plaintiffs conclusory 56.1 response,
which as explained above was evasive and did not directly respond
to statement of fact 13.
Plaintiffs also now object to statements made by Defendants in
their summary judgment briefs. Plaintiffs argue that some of Defendants'
statement should be stricken because Defendants failed to provide
transcript testimony to Plaintiffs as is required under Federal
Rule of Civil Procedure 26(a)(1). (Mot. Recon. 8). However,
Plaintiffs could have filed a motion to strike prior to the
summary judgment ruling and have provided no justification for
the delay. Again, the court rejected Plaintiffs' first set of
arguments, and Plaintiffs are merely attempting to proffer new
arguments to try and get the court to take a second look at the
summary judgment issue.
Plaintiffs also complain that Defendants only cited selective
portions of testimony, but Plaintiffs were given every
opportunity in their answer briefs to Defendants' motions for
summary judgment to point to the portions of the testimony that
Plaintiffs thought pertinent. Plaintiffs also argue that "the
court was deprived of the benefit of other incompetent evidence
that would have disputed the defendants' proffered `facts'" (Mot
Recon. 9) (emphasis added). Plaintiffs argue that we should have
allowed Plaintiffs to offer "inadmissible testimony" in response
to Defendants' motions for summary judgments. (Mot. Recon. 9).
Such an argument is nonsensical. A court can only base a summary
judgment ruling on evidence that would be admissible at trial.
See Smith v. Lamz, 321 F.3d 680, 682 (7th Cir. 2003)
(stating that Local Rule 56.1 requires citations to admissible
evidence). A party can file a motion to strike or otherwise state an
evidentiary objection if evidence is raised by the opposing side
in summary judgment motion briefs that would not be admissible.
We considered all evidentiary objections made by Plaintiffs in
their summary judgment briefs. If Plaintiffs chose not to offer
other evidence because Plaintiffs thought it inadmissible, then
that was their own doing, but to suggest that we should have
considered what Plaintiffs admit to be "inadmissible testimony"
is completely without merit. These arguments are yet another
example of Plaintiffs' attempts to remedy the perceived mistakes
made by them the first time around in regards to Defendants'
summary judgment motions which is not the proper basis for a
motion for reconsideration.
Finally, Plaintiffs argue that we erred in finding that Russ
had formed a new family unit because of the holding in Hewitt v.
Hewitt, 394 N.E.2d 1204 (Ill. 1979). However, as indicated in
our prior opinion, our ruling was based specifically on the
standard elucidated in Bell v. Wilwaukee, 746 F.2d 1205
(7th Cir. 1983). Hewitt was decided before Bell and
Hewitt addressed the issue of property rights between
co-habitants under Illinois state law, 394 N.E.2d at 52-55, while
Bell addressed the scope of standing to bring suits under
Section 1983, a federal statute, and the events in question in
Bell occurred in Wisconsin. 746 F.2d at 1244-45. Thus, the
Hewitt holding pertaining to co-habitation and property rights
under Illinois law is not on point and Plaintiffs have only made arguments by quoting out of
context portions of Hewitt regarding families. Also, once
again, Plaintiffs are presenting arguments that they failed to
present in response to Defendants' summary judgment motions.
Defendants Watts and Banaszkiewicz argued specifically in their
memorandum in support of summary judgment that Russ had formed a
new family unit. (W & B Mot. 9-10). However, Plaintiffs never
raised the holding in Hewitt in their answer brief and never
cited Hewitt. Only now are Plaintiffs seeking to remedy their
perceived deficiencies in regards to Defendants' motions for
Based on the foregoing analysis we deny Plaintiffs' motion for
reconsideration and we enter final judgment dismissing all claims
brought by Russ' siblings.
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