The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Plaintiffs' motion for
reconsideration pursuant to Federal Rule of Civil Procedure
59(e). For the reasons stated below, we deny the motion for
reconsideration in its entirety. BACKGROUND
Plaintiffs entered into agreements with Defendants to sell
Defendants' health and personal care products. Plaintiffs allege
that Defendants' business was actually an illegal pyramid scheme
and that Defendants engaged in fraud. Plaintiffs brought the
instant action seeking to have their agreements with Defendants
declared null and void as contrary to Illinois law and public
policy, and to recover for loss and damage to Plaintiffs'
businesses and property. On October 20, 2003, Defendants filed a
motion to compel arbitration, asserting that the agreements
signed by Plaintiffs contained a clause that provided that
disputes between Plaintiffs and Defendants would be referred to
arbitration. On October 23, 2003, we denied the motion to compel
arbitration and Defendants appealed the ruling.
On appeal the Seventh Circuit reversed this court, remanded the
case back to this court, and ordered the court to vacate the
denial of Defendants' motion to compel arbitration and to "order
arbitration on those claims subject to arbitration." Sharif v.
Wellness Intern. Network, Ltd., 376 F.3d 720, 727 (7th Cir.
2004). On December 1, 2004, we vacated our denial of Defendants'
motion to compel arbitration, granted Defendants' motion to
compel arbitration, and granted Defendants' motion to dismiss.
Plaintiffs have filed the instant motion seeking a
reconsideration of the December 1, 2004, rulings. LEGAL STANDARD
Federal Rule of Civil Procedure 59(e) ("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).
Rule 59(e) motions do not give a party the opportunity to rehash
old arguments or to present new arguments or evidence "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, for a Rule 59(e)
motion, the movant "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
motion brought pursuant to Rule 59(e) "is entrusted to the sound
judgment of the district court. . . ." In re Prince,
85 F.3d 314, 324 (7th Cir. 1996).
I. Appropriate Motion for Reconsideration Standard
Defendants argue that Plaintiffs did not file their motion for
reconsideration in a timely manner and therefore, Plaintiffs will
need to proceed pursuant to Federal Rule of Civil Procedure 60(b)
rather than Federal Rule of Civil Procedure 59(e). If a party does not file the motion for reconsideration within ten
business days "after entry of judgment[, it] automatically
becomes a Rule 60(b) motion." Talano v. Northwestern Medical
Faculty Foundation, Inc., 273 F.3d 757, 762 (7th Cir. 2001)
(quoting Hope v. United States, 43 F.3d 1140, 1143 (7th
Cir. 1994)); U.S. v. Deutsch, 981 F.2d 299, 301 (7th Cir.
1992) (holding that "motions to alter or amend a judgment served
more than ten days after the entry of judgment are to be
evaluated under Rule 60(b)."). Defendants contend that Plaintiffs
did not file their motion for reconsideration until after ten
days after the entry of judgment in this action. However,
Defendants fail to recognize that the ten day limitations period
is ten business days because pursuant to Federal Rule of Civil
Procedure 6(a), "[w]hen the period of time prescribed or allowed
is less than 11 days, intermediate Saturdays, Sundays, and legal
holidays shall be excluded in the computation." Fed.R.Civ.P.
6(a). Defendants also incorrectly concluded that judgment was
entered in this action on December 1, 2004. The official court
record indicates that although the court issued its memorandum
opinion on December 1, 2004, judgment was not entered in this
action until December 2, 2004. Plaintiffs filed their motion for
reconsideration on December 16, 2005, which is exactly 10
business days after the entry of judgment. Therefore, Plaintiffs
are entitled to proceed pursuant to Federal Rule of Civil
I. Terms of Agreements Signed by Certain Plaintiffs Plaintiffs first argue that this court should reconsider its
ruling because the agreements signed by some of the Plaintiffs
did not contain the precise language referred to by the court in
its prior ruling. In our prior ruling, we granted Defendants'
motion to dismiss the remaining three claims of Plaintiffs that
have allegedly sustained damages of more than $100,000. In making
our ruling, we noted that in the Associate Agreements signed by
plaintiffs, the forum selection clause stated the following:
"Jurisdiction and venue over any disputes arising out of this
agreement shall be proper only in the federal or state courts in
Dallas County, Texas." (Agr. Par. 24). We held that such language
clearly indicates that the clause is mandatory and that it
provides for exclusive jurisdiction in Texas courts.
Plaintiffs now contend that the agreements signed by some of
Plaintiffs did not contain the above quoted forum selection
clause. Plaintiffs admit in their motion for reconsideration that
they made an error in the representations that they made to the
court concerning the terms of the agreements signed by some of
Plaintiffs. (Recon. 4 n. 5). We cannot be certain as to which
Plaintiffs are the subject of Plaintiffs' motion for
reconsideration since Plaintiffs make vague references to the
agreements signed by "the Rashid and Khan plaintiffs." (Recon. 1,
2). Although, it is not entirely clear, it appears that
Plaintiffs are referring to Abdul Rashid and Shaheen Rashid. It
also appears that Plaintiffs are referring to Waqar Kahn, and
Shafqut Kahn, although the reference to the "Khan plaintiffs"
might also refer to Hamid Kahn and Maimoona Kahn who signed a
separate agreement. (Recon. 1, 2). Plaintiffs argue that "the Rashid and Khan plaintiffs" signed an
agreement that is separate from the one signed by other
Plaintiffs. (Recon. 1, 2). However, the official record does not
match up with the revelations that Plaintiffs now present to the
court regarding the terms of the agreements each Plaintiff
signed. Plaintiffs argue that the court was confused regarding
the terms of the agreements signed by each Plaintiff, but the
official record and Plaintiffs' own briefs filed in this action
unequivocally show that it is Plaintiffs that are not being
consistent and clear.
For instance, Plaintiffs now contend that neither Abdul Rashid
nor Shaheen Rashid signed an agreement with the above quoted
forum selection clause and Plaintiffs point as evidence of the
agreement signed by Abdul Rashid and Shaheen Rashid to Exhibit 1
of Plaintiffs' response to Defendants' memorandum regarding the
arbitrability of Plaintiffs' claims ("Exhibit 1"). However, the
official record in this action also contains the original
complaint filed by Plaintiffs on August 15, 2002, in case number
02 C 5801 which is now consolidated in this action with case
number 02 C 5801. Attached to the original complaint, as Exhibit
1(I) is an agreement signed by Abdul Rashid and Shaheen Rashid.
The second page of this document contains the precise language of
the forum selection clause that is quoted above, which Plaintiffs
now claims was not in the agreement signed by Abdul Rashid and
Shaheen Rashid. A review of the documents included as Exhibit
1(I) to the original complaint and Exhibit 1 to Plaintiffs'
response to Defendants' memorandum regarding the arbitrability of
Plaintiffs' claims, reveals that the first pages of the two documents are the same page with the same
handwritten information on them, but that the second pages for
each document are not the same. One document contains a second
page with the above quoted forum selection clause and one
document does not contain the clause. Although the original
complaint has been incorporated into a consolidated complaint,
the Exhibits attached to the original complaint are still part of
the official record and there is nothing in the official record
that explains the mysterious transformation of the agreement
signed by Abdul Rashid and Shaheen Rashid as these proceedings
Plaintiffs also contend that "the Kahn plaintiffs" did not sign
an agreement with the above venue selection clause. If Plaintiffs
are referring to Waqar Kahn and Shafqut Kahn, there is another
inconsistency in the official record filed by Plaintiffs. A
review of Exhibit 1(H) attached to the original August 15, 2002,
complaint reveals that the first page of the document signed by
Waqar Kahn and Shafqut Kahn is identical to Exhibit 1 of
Plaintiffs' response to Defendants' memorandum regarding the
arbitrability of Plaintiffs' claims, but that the second page of
Exhibit 1H is not the same as the second page now included in
Exhibit 1. One document includes the above quoted forum selection
clause on the second page and one document does not. If, on the
other hand, Plaintiffs intend by their reference to "the Kahn
plaintiffs" to refer to Hamid Kahn and Maimoona Kahn, Exhibit 1J
of the consolidated complaint contains an agreement signed by
them and the agreement includes the above quoted forum selection
clause. Finally, in Plaintiffs' response to Defendants' memorandum
regarding the arbitrability of Plaintiffs' claims, Plaintiffs
represented to the court, when referring to the above quoted
forum selection clause, that Abdul Rashid, Shaheen Rashid, Waqar
Kahn, and Shafqut Kahn signed the same agreement as Plaintiffs
Richard Sharif and Souzan Sharif. (Ans. 3 n. 2). This
representation to the Court was a further indication to the court
by Plaintiffs that Abdul Rashid, Shaheen Rashid, Waqar Kahn, and
Shafqut Kahn signed an agreement with the above quoted forum
selection clause since Plaintiffs have indicated since the
inception of the litigation, and still acknowledge in their
motion for reconsideration, that Richard Sharif and Souzan Sharif
signed an agreement with the above quoted forum selection clause.
Plaintiffs now make the following admission in a footnote in
their motion for reconsideration: "In footnote 2 we stated that
the Sharifs signed the same agreement as the Rashids and Khans.
That was an error. The Sharifs signed the Associate Agreement."
(Recon 4 n. 5). Thus, although Plaintiffs now stand accusing the
Court of making a manifest error in regards to the terms of the
agreements signed by the above mentioned Plaintiffs, Plaintiffs
have now hidden away in a footnote an admission of their error.
It was Plaintiffs' obligation to present the correct facts to the
court and the court ruled upon the facts presented. It is now too
late for Plaintiffs to attempt to engage in a wholesale revision
of Plaintiffs' past filings and get a second opportunity to
respond to Defendants' motion to dismiss.
We also note that even if Plaintiffs are correct as to their
current version of the terms signed by the above named Plaintiffs and Plaintiffs' prior
representations were inaccurate, the language alleged by
Plaintiffs in their latest version of the agreements contains
language indicating that the proper venue "shall be proper" in
Dallas County, Texas. (Agr. Par. 19). The reference in the clause
to "non-exclusive ...