United States District Court, N.D. Illinois, Eastern Division
May 18, 2005.
UNITED STATES OF AMERICA, Plaintiff,
PETER ALTMAYER, Defendant.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
This Court's May 9, 2005 memorandum order ("Order") analyzed
the just-filed motion to dismiss by counsel for Peter Altmayer
("Altmayer"), including particularly the opinion from our Court
of Appeals on which counsel had staked his bet, and denied the
motion to dismiss for the reasons stated in the Order. Nothing
daunted, Altmayer's counsel has served notice on May 18 of the
presentment today of his Motion To Reconsider Defendant
Altmayer's Motion To Dismiss Complaint. For the reasons stated
here, Altmayer's motion is denied.
It should be said at the outset that moving counsel's
disagreement with this Court's ruling (a disagreement to which
counsel is of course entitled) is not a sufficient predicate for
a motion to reconsider. As this Court put it in response to a
like-minded litigant in Quaker Alloy Casting Co. v. Gulfco
Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988) (adapted to
this case, with footnote omitted):
Despite what [Altmayer] appears to think, this
Court's opinions are not intended as mere first
drafts, subject to revision and reconsideration at a litigant's
pleasure. Motions such as this reflect a fundamental
misunderstanding of the limited appropriateness of
motions for reconsideration.
That level of "limited appropriateness" was felicitously defined
by the late Honorable Dortch Warriner in Above the Belt, Inc. v.
Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983):
The motion to reconsider would be appropriate where,
for example, the Court has patently misunderstood a
party, or has made a decision outside the adversarial
issues presented to the Court by the parties, or has
made an error not of reasoning but of apprehension. A
further basis for a motion to reconsider would be a
controlling or significant change in the law or facts
since the submission of the issue to the Court. Such
problems rarely arise and the motion to reconsider
should be equally rare.
In this instance this Court has not misapprehended Altmayer's
arguments at all instead it has correctly understood them but
has respectfully disagreed with them. One thing should be added
in light of the current motion's attempted reliance on earlier
caselaw from our Court of Appeals: None of those cases dealt with
the validity of 24 C.F.R. § 100.400(c)(2), which controls the
viability or nonviability of this action (indeed, none of those
cases could have done so, for the lawsuits involved in all of
them antedated the January 23, 1989 adoption of that regulation
see 54 Fed. Reg. 3283, 3291).
But as to Altmayer's renewed effort to emphasize the dictum in
the Halprin case discussed in the Order, some elaboration of
the matter may perhaps be useful. There are of course sound principles underpinning the distinctions between dicta (judicial
statements that do not form the predicate for a court's decision)
and holdings (judicial statements that do). When dicta are tested
in the crucible of later litigation in which they will indeed be
outcome-determinative, they sometimes do and sometimes do not
emerge as actual holdings and of course they are sometimes
altered or rejected altogether because the light cast by the
facts involved in the later litigation may have exposed flaws in
the earlier statements voiced in theoretical terms.
If the Regulation were patently invalid (as directly opposed to
the Eleventh Circuit's statement in Gonzalez v. Lee County Hous.
Auth., 161 F.3d 1290, 1304 n. 43 (11th Cir. 1998) "that it
is patently valid"), our Court of Appeals' decision to allow the
Halprin plaintiffs' claim to survive on the ground of the
opponents' forfeiture of any attack on the Regulation might seem
somewhat problematic. But speculation on that score is
unnecessary at this threshold stage of the present lawsuit. As
between the alternatives of (1) dismissing this action on the
basis of a dictum (which by definition does not bind the court
that uttered it), thus forcing plaintiffs to appeal on a purely
paper record, and (2) permitting the parties to develop a full
record to see whether plaintiffs can prove that Altmayer in fact
engaged in the appalling conduct recited in the Complaint, so
that the Regulation could be tested in that light, the latter course appears clearly preferable. And as Order at 3 indicated,
the latter course has the added advantage of permitting this
Court to take account of any intervening legal developments and,
if need be, to revisit the issue.
In sum, Altmayer's motion for reconsideration is denied. As
stated in the Order, this Court remains open to reconsideration
in the future if further legal developments were to call for it
to revisit the matter.
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