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U.S. v. LIGAS

May 17, 2005.

UNITED STATES OF AMERICA, Plaintiff
v.
LAWRENCE J. LIGAS, LADE BANK Defendants.



The opinion of the court was delivered by: JAMES HOLDERMAN, District Judge

MEMORANDUM OPINION AND ORDER

On March 1, 2005, this court issued a memorandum opinion and order ("March 1, 2005 order") (Dkt. Nos. 42, 43), granting plaintiff United States of America's ("government"), motion for an extension of time to effect service and to allow service by alternative means (Dkt. No. 27). Defendant Lawrence J. Ligas ("Ligas"), filed on March 15, 2005 the pending motion requesting this court to reconsider and vacate its March 1, 2005 order. (Dkt. No. 45). For the reasons set forth below, Ligas' motion for the reconsideration and vacating of this court's March 1, 2005 order (Dkt. No. 45), is granted. This court's March 1, 2005 order (Dkt. Nos. 42, 43), granting the government's motion of January 31, 2005 for an extension of time to effect service and to allow service by alternative means (Dkt. No. 27), is vacated and upon reconsideration is denied. The government's service effected by alternative means of March 21, 2005 is quashed. (Dkt. No. 48). The government's First Amended Complaint filed August 27, 2004 (Dkt. No. 5) ("August 27, 2004 Complaint"), which amended the government's Original Complaint of February 6, 2004, is dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

With the dismissal of the government, the remaining claim in this case is the third-party claim between defendant and third-party plaintiff Lade Bank ("Lade"), and defendant and third-party defendant Ligas and other unknown defendants. It appears to this court that it lacks subject matter jurisdiction over Lade's third-party claim under diversity of citizenship, due to the fact Lade's claim is for the foreclosure of a mortgage and Lade and Ligas are both Illinois citizens. Therefore, Lade is ordered to file with this court a brief detailing whether this court has subject matter jurisdiction over any remaining claims, in light of the dismissal of the government as a party, no later than May 27, 2005. Ligas' response on the issue of subject matter jurisdiction is due no later than June 10, 2005. Lade's reply is due no later than June 17, 2005.

  STANDARD OF REVIEW

  A court may address a motion to reconsider when the court has not entered a final judgment in the matter. See Ramada Franchise Sys., Inc. v. Royal Vale Hospitality of Cincinnati, Inc., No. 02 C 1941, 2004 WL 2966948 (N.D. Ill. Nov. 24, 2004) (discussing a district court's authority to reconsider its prior interlocutory decisions). "Motions to reconsider do not exist in order to allow parties to `rehash' the same arguments." Rosby Corp. v. Stoughton Trailers, Inc., No. 95 C 511, 2004 WL 1462244, at *3 (N.D. Ill. June 28, 2004) (citing Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1998)). A court should reconsider its prior decision if "(1) the court has patently misunderstood a party; (2) the court has made a decision outside the adversarial issues presented to the court by the parties; (3) the court has made an error not of reasoning but of apprehension; (4) there has been a controlling or significant change in the law since the submission of the issue to the court; or (5) there has been a controlling or significant change in the facts since the submission of the issue to the court." Ramada Franchise Sys, Inc., No. 02 C 1941, 2004 WL 2966948, at *3 (citing Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990)). This case centers solely around the issue of whether "there has been a controlling or significant change in facts since the submission of the issue to the court." Id.

  BACKGROUND

  The court is vacating its March 1, 2005 opinion because it has concluded, based on the court's awareness of a significant change in facts after the submission of the issue to the court, that it arrived at an incorrect decision when it granted the government's motion for an extension of time to effect service and to allow service by alternative means. The factual information and legal authority presented by the court in its March 1, 2005 opinion remains both correct and pertinent to the present motion, and therefore this court will incorporate, were appropriate, the factual information and legal authority from the court's March 1, 2005 opinion.

  A. Factual Information Considered by the Court in its March 1, 2005 Opinion

  The government filed its original complaint on February 6, 2004 against Ligas seeking payment of back taxes, interest and penalties. (Dkt. No. 1). Lade was added as a defendant in the government's amended complaint of August 27, 2004, (Dkt. No. 5), because Lade has a mortgage on Ligas' residence at 2424 N. Kedzie in Chicago, Illinois. Lade filed an answer, counterclaim and third-party complaint on November 3, 2004 seeking foreclosure on the mortgage. (Dkt. No. 14).

  The government's August 24, 2005 Complaint alleges that the Internal Revenue Service ("IRS"), made an assessment on March 4, 1991 against Ligas for "his failure to collect, truthfully account for, or turn over the unpaid income tax and [FICA] taxes withheld from the wages of the employees of L.J. Ligas, Inc., for the last three quarters of 1987 and the first quarter of 1988" for the amount of $66,833.71. (Dkt. No. 5 at 2). With interests and penalties, the government asserts that Ligas owes $243,324.59 as of February 8, 2004. (Id. at 3). The government's August 27, 2004 Complaint sought this court to enter a judgment in its favor for the $243,324.59 balance, attach a federal tax lien on Ligas' real property located at 2424 North Kedzie Boulevard in Chicago, Illinois, and foreclose the tax lien in order to allow a sale of the 2424 North Kedzie property so as to allow for the proceeds of the sale to be offset against Ligas' tax liability. (Id. at 5).

  This court has not reached the substantive issues in this case because the government did not effect service of process in a manner sufficient to vest this court with jurisdiction over Ligas. The government sought and received from this court, a series of extensions of time for the government to effect service of process. The government after filing its original complaint on February 6, 2004, (Dkt. No. 1), did not serve Ligas and sought an extension on June 3, 2004. (Dkt. No. 3). The court granted the government's extension until September 3, 2004 and apprised the government that no further extensions would be allowed. (Dkt. No. 4). The government's June 3, 2004 motion asserted that several efforts had been made by IRS employees and employees of private process servers to serve Ligas. (Id.) The government also asserted that government counsel had been in phone contact with Ligas, and that Ligas had been unwilling to waive personal service and accept service of process by mail. (Id.) Furthermore, the government asserted that if an extension was not allowed, the government would be barred from bringing a new action under the statute of limitations. (Id.)

  Having not accomplished the task of serving Ligas, the government returned to the court on August 30, 2004 with a second request for an extension of time to effect service of process. (Dkt. No. 6). The government's August 30, 2004 motion and supporting affidavit asserted that the government had been unable to serve Ligas, and Ligas in turn could not be found or had concealed himself within the State of Illinois. (Dkt. Nos. 6-8). The government sought, and this court granted in its September 9, 2004 minute order, service by publication as allowed by applicable federal rule and Illinois law. (Dkt. No. 9).

  The government then brought an application for default (Dkt. No. 16), and a motion for entry of foreclosure (Dkt. No. 17), against Ligas. Ligas filed a pro se appearance on December 3, 2004 (Dkt. No. 12), for the limited purpose of filing a motion to vacate this court's September 9, 2004 order granting the government an extension of time to effect service and to quash service by publication. (Dkt. No. 19). The appearance listed Ligas' current home address, phone number and his fax number, (Dkt. No. 12), and his current business address was listed in paragraph 14 of an affidavit attached to Ligas' motion.

  Ligas' motion to vacate the September 9, 2004 order also included a notice of motion informing government counsel that he, Ligas, would be appearing before this court on December 7, 2004 at 9:00 a.m. to present his motion. Ligas' certificate of service stated that a copy of the motion and the associated notice of the motion was hand delivered to the Assistant United States Attorney involved in the matter at the United States Attorney's Office at the Dirksen Federal Building in Chicago. (Dkt. No. 20). The certificate of service also asserted that a copy of the motion and associated notice of ...


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