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G.R.P. Mechanical Co., Inc. v. Kienstra Concrete

January 11, 2006


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



Before the Court is plaintiff G.R.P. Mechanical Company, Inc.'s ("GRP") Motion to Reconsider (Doc. 41) the Court's August 26, 2005 order (Doc. 36), which granted defendant United Fire & Casualty Company's ("United") Motion to Sever (Doc. 24) GRP's claims against United from its claims against defendants Kienstra Concrete, Inc. ("Kienstra") and RCS Construction, Inc. ("RCS"). GRP also moves the Court to reconsider its subsequent order, also issued on August 26, 2005 (Doc. 37), which granted in part and denied in part GRP's Motion to Remand (Doc. 4).

Specifically, upon United's Motion to Sever, the Court determined that it had no federal subject matter jurisdiction over GRP's claims against Kienstra and RCS, and therefore granted in part GRP's Motion to Remand with respect to those claims. (Doc. 37.) However, the Court found that diversity jurisdiction existed pursuant to 28 U.S.C. § 1332 between GRP and United, and so GRP's motion to remand with respect to those claims was denied. Further, United had previously filed a declaratory judgment action with this court regarding the duty to defend and indemnify GRP with respect to the Commercial General Liability ("CGL") insurance policy at issue in this matter.*fn1 Because of this pre-existing lawsuit, which was assigned to Judge Reagan, GRP's severed claims against United in the instant suit were also referred to Judge Reagan.*fn2


To briefly summarize the relevant facts, GRP filed the instant lawsuit in the state Circuit Court of Madison County, Illinois. GRP was hired as a general contractor by Premcor Refinery Group, Inc., in order to construct a Dissolved Air Flotation ("DAF") unit. (Doc. 2, ¶ 2.) GRP then contracted with RCS to pour the concrete vessel of the DAF. (Id. at ¶¶ 2, 13.) Kienstra was hired in order to manufacture and supply concrete to RCS. (Doc. 11, ¶¶ 3, 16.) Along the way, GRP ran into several problems with the DAF unit -- it was found to have leaked during testing and therefore had to be rebuilt. (Doc. 25, p. 2.)

United is GRP's insurance carrier on its CGL policy. (Doc. 10, ¶ 5.)

GRP made a claim on its CGL policy for the alleged loss suffered in having to rebuild the DAF unit. (Doc. 2, ¶ 23 and Ex. B, and Doc. 11, ¶ 25.) United denied GRP's claim. (Id.)

Before the claims were severed by order of the Court, Count Iof GRP's Complaint alleged that RCS, a subcontractor, breachedits contractwith GRP to pour the concrete vessel of the DAF unit by, among other things, failing to pour the concrete vessel properly and in a good and workman-like manner. (Doc. 2, ¶¶ 41-46.) Count IIalleged negligence against RCS. (Id. at ¶¶ 47-50.) Count IIIalleged products liabilityagainst Kienstra, a subcontractor of RCS, in that the raw concrete it manufactured and supplied for the job was unreasonably dangerous. (Id. at ¶¶ 47-50.) Count IValleged negligenceagainst Kienstra. (Id. at ¶¶ 55-58.) The counts of GRP's Complaint remaining in federal court are directed at United,GRP's insurance carrier, because it denied insurance coverage for GRP's claim on its CGL policy. Count Valleges breach of contract(Id. at ¶¶ 59-64); Count VIalleges vexatious refusal topayunder 215 ILCS 5/155 (Id. at ¶¶ 65-67); Count VII(mistakenly labeled Count VI in GRP's Complaint) alleges violation of the Illinois Consumer Fraud Act, 215 ILCS 5/155(Id. at ¶¶ 68-73); and Count VIII(mistakenly labeled Count VII) alleges fraud (Id. at 74-79).*fn3

United removed GRP's case to federal district court based upon diversity jurisdiction, pursuant to 28 U.S.C. § 1332, maintaining that although Kienstra and RCS are residents of the same state as GRP, diversity jurisdiction should exist because GRP misjoined them as parties to its suit against United. (Doc. 1.) As stated previously, GRP then moved to remand while United thereafter filed its moved to sever claims.



Shortly after the Court issued the relevant orders on August 26, 2005, GRP filed its Motion for Reconsideration on August 31, 2006. (Doc. 41.) Although GRP failed to specify the particular rule of civil procedure it based this motion on, as the motion was filed within 10 days after issuance of the order for which it seeks reconsideration, this motion is properly made pursuant to Federal Rule of Civil Procedure 59(e). See FED.R.CIV.P. 59(e) ("Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment"). A Rule 59(e) motion "must clearly establish either a manifest error of law or fact or must present newly discovered evidence." LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)(citing FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986)).

Determining whether to grant a Rule 59(e) motion is at a district court's discretion. See Pickett v. Prince, 207 F.3d 402, 407 (7th Cir. 2000)(stating "[A] motion to reconsider a ruling is constrained only by the doctrine of the law of the case. And that doctrine is highly flexible, especially when a judge is being asked to reconsider his own ruling." (citations omitted)). "The rule essentially enables a district court to correct its own errors, sparing the parties and the appellate courts the burden of unnecessary appellate proceedings." Russell v. Delco Remy Div. of General Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995) (citation omitted). The function of a motion to reconsider a judgment is not to serve as a vehicle to re-litigate old matters or present the case under a new legal theory. Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000)(citing Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996)). Moreover, the purpose of such a motion "is not to give the moving party another 'bite of the apple' by permitting the arguing of issues and procedures that could and should have been raised prior to judgment." Yorke v. Citibank, N.A. (In re BNT Terminals, Inc.), 125 ...

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