United States District Court, N.D. Illinois, Eastern Division
September 28, 2004.
AIRCRAFT GEAR CORPORATION, an Illinois corporation Plaintiff,
CLAYTON S. MARSH, and ROPES & GRAY, a partnership Defendant.
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
This case arises out of alleged "professional negligence in the
rendering of legal services" by Defendants Clayton S. Marsh
("Marsh") and Ropes & Gray, relating to their representation of
Aircraft Gear Corporation ("AGC") in a contract dispute with
Boeing Industries ("Boeing"). (Pls. Am. Compl. ¶ 1.) Plaintiffs
AGC brought this suit in the Circuit Court of Winnebago County,
Illinois, on July 5, 2002; Defendants removed to the United
States District Court of the Northern District of Illinois,
Western Division shortly thereafter. Plaintiffs filed their First
Amended Complaint with the court on September 25, 2002, alleging
attorney negligence or, in the alternative, breach of
attorney/client contract. On October 25, 2002, Defendants filed a
Counterclaim, in which they sought payment for legal services
rendered AGC by Defendant Ropes & Gray (Counterclaim I) and
Defendant Marsh (Counterclaim II).
Magistrate Judge P. Michael Mahoney set the case schedule on
December 18, 2002. At this time, plaintiff's disclosure of expert
testimony pursuant to Federal Rule of Civil Procedure 26(a)(2) was scheduled for April 30, 2003. The fact discovery
closure date was set to March 31, 2003. Three discovery
conferences took place between March 2003 and November 2003,
resulting in extensions of discovery deadlines. On November 17,
2003, Judge Mahoney held a settlement conference, at which time
he extended Plaintiff's expert disclosure deadline to January 30,
On December 18, 2003, Defendants filed a motion for summary
judgment and a motion for summary judgment on counterclaims I and
II. On that same day, Defendants filed Local Rule 56.1 Statements
of Undisputed Facts in support of each of their motions for
summary judgment. Judge Mahoney set a deadline of February 2,
2004 for Plaintiff's response, and February 23, 2004 for
Defendants' reply on Defendants' motions for summary judgment.
On January 29, 2004, Plaintiffs moved for an extension of time
in which to file its Rule 26 expert disclosures because
Plaintiff's counsel had been involved in a complex professional
negligence case and had not had time to retain experts.
Defendants filed a formal opposition to this motion on February
2, 2004, alleging failure to show good cause for an extension. At
this point, relations between the parties noticeably began to
deteriorate, a deterioration which regrettably has continued over
the intervening months and which has manifested itself in
overheated language in both parties' briefs. While the motion for
extension was pending, Plaintiffs filed their answer and
supporting Local Rule 56.1 Statements of Undisputed Facts to
Defendants' motions for summary judgment on February 2, 2004, as
required by Judge Mahoney's scheduling order. On February 4,
2004, Judge Mahoney granted Plaintiff's motion for an extension
of time, setting a new deadline for expert disclosure of March 1,
2004. Defendants filed a reply to Plaintiff's response to Defendants'
motions for summary judgment on February 23, 2004, in which
Defendants asserted, inter alia, that Plaintiff's failure to
provide admissible expert testimony was fatal to Plaintiff's
claims. This argument sparked a flurry of collateral motions. On
March 3, 2004, Plaintiff filed a motion for leave to file its
Rule 26(A)(2) expert disclosures in opposition to Defendants'
motions for summary judgment; Defendants filed an opposition
motion on March 9, 2004. Judge Mahoney transferred Plaintiff's
Motion for Lleave to File Expert Disclosures in Opposition to
Defendants' Motion for Summary Judgment to District Court Judge
Philip G. Reinhart, to be ruled on together with Defendants'
motions for summary judgment.
On March 12, 2004, Plaintiff filed a motion to strike the new
argument raised in Defendants' reply brief in support of
Defendants' motion for summary judgment. On the same day,
Plaintiff also filed a motion to supplement its response to
Defendants' motion for summary judgment pursuant to Rule 56(f).
Judge Reinhart scheduled a telephone conference on the pending
motions for March 22, 2004, at which time it was discovered that
the president of the plaintiff corporation was acquainted with
the judge. The court recommended that the case be reassigned to
the Western Division Back-Up Judge.
Pending resolution of the case reassignment recommendation, the
plaintiff moved for an extension of time to April 9, 2004 to
produce its expert witnesses. Judge Mahoney granted this motion
on March 26, 2004. In early April, Defendants filed memoranda in
opposition to plaintiff's motion to strike and to plaintiff's
motion to supplement. The case was reassigned to this Court on
May 13, 2004. In late June 2004, Defendants moved to strike
Plaintiff's expert's rebuttal/supplemental report. Judge Mahoney
denied this motion on August 11, 2004. The case comes before the Court now on Defendants' Motion for
Summary Judgment and Defendants' Motion for Summary Judgment on
Counterclaims I and II. Both motions have been fully briefed. For
the reasons set forth in the opinion below, both motions are
denied without prejudice. All pending motions are hereby
stricken. Parties have until October 18, 2004 to file new
dispositive motions with the Court.
A party seeking summary judgment has the burden of showing,
through "pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any," that
there are no genuine issues of material fact that would prevent
judgment as a matter of law. Fed.R. Civ. P. 56(c). On a motion
for summary judgment, courts "must construe all facts in the
light most favorable to the non-moving party and draw all
reasonable and justifiable inferences in favor of that party."
Allen v. Cedar Real Estate Group, LLP, 236 F3d 374, 380
(7th Cir. 2001).
In a motion for summary judgment, the moving party generally
may not raise new issues in its reply brief. See Carnes v. MCI
Telecommunications Corp., No. 96 C 0627, 1997 WL 767013, at *3
(N.D. Ill., Dec. 4, 1997) ("[t]he moving party may not . . .
raise new issues in its reply brief"); Fasules v. D.D.B.
Needham, Worldwide, Inc., No. 89 C 1078, 1989 WL 105264, at *2
(N.D. Ill., Sept. 7, 1989) (citing Autovox v. Lenco Italiana,
208 U.S.P.Q. (BNA) 412, 415 (N.D. Ill. 1980)) ("any new issues
would have to be disallowed [in the reply brief] because
plaintiffs have not had an opportunity to respond"). This
prohibition supports the efficient allocation of judicial
resources. The requirement that all arguments for summary
judgment be raised in the moving party's initial brief allows the
party's arguments and the record to be fully developed for the court's consideration. Shurr v. A.R. Siegler,
Inc., 70 F. Supp. 2d 900, 912 (E.D. Wis. 1999). When an issue is
raised for the first time on reply, the adverse party typically
has no opportunity to respond and the record on that issue
therefore is developed insufficiently for consideration. Id.
When summary judgment reply briefs raise new reasons for the
entry of summary judgment and do not "merely respond to matters
placed in issue by the opposition brief," they are improper and
should not be considered. See Beck v. University of Wisconsin
Bd. of Regents, 75 F.3d 1130, 1134 & n. * (7th Cir. 1996)
(quoting Baugh v. City of Milwaukee, 823 F. Supp. 1452, 1457
(E.D. Wis. 1993), aff'd, 41 F.3d 1510 (7th Cir. 1994)).
In this case, Defendants moved for summary judgment on the
grounds that Plaintiff's claims were barred by the applicable
statute of limitations and that Defendants' actions were not the
proximate cause of Plaintiff's damages. (Defs.'s Mot. for Summ.
J.) Plaintiff responded that its claims were not barred by the
statute of limitations, and that Defendants' actions were, in
fact, the proximate cause of its damages. (Pl.'s Resp. to Defs.'s
Mot. for Summ. J.) In their reply brief, Defendants asserted that
Plaintiff's failure to provide "admissible [expert] evidence of a
breach of the standard of care causing damages" in its response
was fatal to its claims. (Defs.'s Reply Mem. of Law in Supp. of
Summ. J. at 6) Neither party had addressed the element of breach
of the applicable standard of care in their pleadings on summary
judgment. This was a new argument and, as such, improper. Beck,
75 F.3d at 1134 & n. *.
The ensuing flurry of motions, several of which included
requests for relief in the alternative, served to complicate the
record unnecessarily and inflamed tempers to the detriment of
both parties and counsel. The best way out of this tangle of
pleadings appears to be simply to cut the knot and begin again.
Therefore, Defendants' Motion for Summary Judgment and Defendants' Motion for Summary Judgment on Counterclaims I and II
are hereby denied without prejudice. This Court will not
countenance multiple motions for summary judgment. For the
purpose of achieving judicial efficiency and to permit the Court
to consider a fully-developed and briefed record, however, all
parties have until October 18, 2004 to file new dispositive
motions. The Court anticipates that, because discovery should
have been completed by this time, all issues will be properly
before the Court and a comprehensive disposition of all relevant
issues will be possible.
For the foregoing reasons, Defendants Motion for Summary
Judgment and Defendants' Motion for Summary Judgment on
Counterclaims I and II are denied without prejudice. All other
pending motions are moot and hereby stricken. Parties have until
October 18, 2004 to file new dispositive motions with the Court.
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