The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant Site Recovery Services, Inc.'s ("SRS") motion for reconsideration of our ruling granting Plaintiff Nautilus Insurance Company's ("Nautilus") motion for summary judgment and denying SRS's motion for summary judgment. For the reasons stated below, we deny the motion for reconsideration in its entirety.
In the instant action, Nautilus alleged that it entered into an insurance policy ("Policy") with SRS that provided SRS with certain insurance coverage in regard to SRS's demolition projects. SRS was sued in an underlying state court action regarding a demolition project and Nautilus brought the instant action, seeking a declaratory judgment contending that Nautilus does not have a duty to defend or indemnify SRS in regard to the underlying state court action. On February 28, 2006, we granted Nautilus' motion for summary judgment and denied SRS's motion for summary judgment. SRS now asks the court to reconsider its prior ruling.
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). 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. v. Resolution Trust Corp. 49 F.3d 1263, 1267 (7th Cir. 1995)(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).
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 Med. Fac. Found., Inc., 273 F.3d 757, 762 (7th Cir. 2001)(quoting Hope v. United States, 43 F.3d 1140, 1143 (7th Cir. 1994)); United States 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)"); Fed R. Civ. P. 6(a). Federal Rule of Civil Procedure 60(b) provides:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken . . . .
Fed. R. Civ. P 60(b).A court should grant a Rule 60(b) motion "only in exceptional circumstances" because "[r]elief under Rule 60(b) is an extraordinary remedy . . . ." Talano, 273 F.3d at 762(quoting Provident Sav. Bank v. Popovich, 71 F.3d 696, 698 (7th Cir. 1995)).
In our ruling on February 28, 2006, granting Nautilus' motion for summary judgment, we referred to an exclusion provision ("Unscheduled Demolition Endorsement") of the Policy that was added by an endorsement to the Policy. The endorsement excluded insurance coverage unless SRS "specifically schedule[d]" a demolition project "in the Declarations or add[ed] [the project] by endorsement prior to the start of the demolition project." (Pol. End. S105, 04/99). We also noted in our prior ruling that Nautilus had argued that coverage under the Policy was excluded under the Unscheduled Demolition Endorsement. In its response to Nautilus' motion for summary judgment, SRS failed to even argue that the demolition project in question was scheduled in the declarations of the Policy or added by endorsement, and no exhibit was provided by either side that showed that such scheduling or endorsement had occurred. We granted Nautilus' motion for summary judgment because Nautilus pointed to evidence that showed the existence of the Unscheduled Demolition Endorsement and in light of the absence of any evidence showing that SRS complied with the endorsement. See Celotex Corp. v. Catrett, 477 U.S. 317 (explaining that a movant can point to the absence of evidence to support the non-movant's position). In SRS's answer to Nautilus' motion for summary judgment, SRS also acknowledged that the Unscheduled Demolition Endorsement was currently an operative part of the Policy, when it argued that the endorsement should not be enforced due to its ambiguous nature. (Ans. N SJ 7-8).
SRS claims in its motion for reconsideration that "Vince Miller, President of SRS, has continued to review the numerous endorsements and declarations Nautilus issued to SRS during the effective dates of the Policy that were to be included in the Policy [and that] [o]n March 6, 2006, Vince Miller discovered Endorsement #45, an endorsement which Nautilus issued to SRS to be incorporated into the Policy." (Mot. 3). SRS contends that this newly discovered endorsement ("Endorsement 45") states that the Unscheduled Demolition Endorsement was deleted from the Policy. Accordingly, SRS moves to reconsider the court's prior ruling under Rule 59(e) or, in the alternative, under Rule 60(b). (Mot. 1).
SRS claims that Endorsement 45 is newly discovered ...