The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
On March 30, 2007, this Court granted Defendants' Deborah Achim and the Chicago Field House of the United States Immigration and Customs Enforcement, a division of DHS (collectively, "Defendants") Motion to Dismiss based upon the conclusion that the case was moot. Plaintiffs Faustino Yacobo ("Yacobo") and Lenard Khamo ("Khamo") (collectively, "Plaintiffs") brought a mandamus petition in the Northern District of Illinois pursuant to 28 U.S.C. §1361 and 28 U.S.C. §1331(a) seeking to compel the Department of Homeland Security ("DHS") to release them from custody pending their removal from the United States.
Plaintiffs were released from custody while the case was being adjudicated. This Court concluded that Plaintiffs lost their individual interests in the outcome of the suit and that their claims were moot. This Court also concluded that the Plaintiffs' claims were not subject to the exception to the mootness doctrine that where the harm complained of is capable of repetition, yet evading review, the claim is not moot because Plaintiffs had not shown that either would again be subjected to the alleged illegality. See Holstein v. City of Chicago, 29 F.3d 1145, 1147 (7th Cir.1994) (quoting County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991); and citing City of Los Angeles v. Lyons, 461 U.S. 95, 110, (1983)).
Plaintiffs contend that they were not given an opportunity to fully brief issues relating to the alleged "mootness" of their claims due to Defendants' failure to make their arguments relating to the "capable of repetition, yet evading review" doctrine prior to filing their reply brief. Before the Court now is Plaintiffs' Motion to Alter or Amend the Judgment Pursuant to Rule 59(e) based upon their contentions that the Court's ruling was outside the adversarial issues presented to the Court and that they were denied an opportunity to respond to the Defendants' arguments.
A court may grant a motion to amend a judgment in three circumstances: 1) there is newly discovered evidence; 2) there has been an intervening change in the law; or 3) the judgment reflects a manifest error in the law or fact. Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir.1998); Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). A "manifest error" is a "wholesale disregard, misapplication, or failure to recognize controlling precedent" on the part of the court. Oto, 224 F.3d at 606 (quoting Sedrak v. Callahan, 987 F.Supp. 1063, 1069 (N.D.Ill. 1997)). Such situations rarely occur, however, and the so-called "motion to reconsider" should likewise be rare. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (citing Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983)).
Plaintiffs contend that the Order dismissing their case for mootness should be amended or altered because the Court's ruling was made "outside the adversarial issues presented" to the Court and that they were denied an opportunity to respond to the Defendants' arguments. Basing a ruling on issues not raised through the adversarial process or not raised on the defendant's initial motion to dismiss yet relied upon would most likely qualify as a manifest error of law. See Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 605 F. Supp. 6, 7 (N.D. Ill. 1983); Above the Belt, Inc., 99 F.R.D. at 101; see also Help at Home, Inc. v. Medical Capital, L.L.C., 260 F.3d 748, 754 (7th Cir. 2001). However, contrary to Plaintiffs' assertion, the issue of mootness was presented to this Court. In their memorandum in support of their motion to dismiss, Defendants inserted the following footnote:
Plaintiff Faustino Yacobo was released on an order of supervision following a post- order custody review conducted by defendant Immigration and Customs Enforcement, (ICE) Chicago office on or about April 17, 2006, therefore he is no longer in ICE custody. Thus, the claims alleged by Plaintiff Yacobo are moot. See Spencer v. Kemna, 523 U.S. 1, 18 (1998) ("mootness, however, it may have come about, simply deprives us of our power to act; there is nothing for us to remedy, even if we were disposed to do so.").
In their opposition brief, the Plaintiffs stated the following in a footnote:
The Government has not argued that this case has become moot on release of the Plaintiffs, nor would their release moot the case. The Plaintiffs have been released on supervision, but it is the position of the Government that they are subject to rearrest with no prior warning, for violation or alleged violation of the terms of their release, or if the Government concludes that it can effectuate removal to a third country. Thus, the harm complained of here is capable of repetition yet evading review, and the claim is not moot. Plaintiffs also intend to ask leave to substitute new named Plaintiffs so as to continue to prosecute these class claims.
Plaintiffs contend they were not on notice that the Court might dismiss the case as to all of the claims, including those of the unnamed class members, on grounds of mootness. However, as seen above, Plaintiffs clearly contemplated dismissal on the grounds of mootness given that they asserted in their opposition brief that their individual claims were not subject to dismissal by virtue of the "capable of repetition yet evading review" exception and that their class claims would survive if they substituted "new named Plaintiffs so as to continue to prosecute these class claims."
Due to the facts of this case, Defendants did not include a complete mootness argument in their memorandum in support of their motion to dismiss. Khamo, the second named Plaintiff, was not released until after they had already filed the motion. On or about April 17, 2006, Faustino Yacobo was released from custody. On June 5, 2006, the other named plaintiff, Lenard Fraidon Khamo, was released from custody. About one month later, Plaintiffs filed their memorandum in opposition to the motion to dismiss. On July 21, 2006, Defendants filed their reply brief. Following the release of both plaintiffs from custody, the brief expanded upon the mootness argument and argued that the Plaintiffs could no longer establish Article III standing. On March 30, 2007, this Court granted Defendants' motion to dismiss based upon mootness. During the time that passed between the filing of Defendants' reply brief and this Court's decision, Plaintiffs did not either move to file a sur-reply, move for additional briefing, move to certify the class, or move to amend the complaint with substitute named plaintiffs in place of Yacobo and Khamo.
Rule 12(h)(3) allows a court to dismiss any action at any stage of the litigation upon learning that the court does not have subject-matter jurisdiction over the action. Thus, Plaintiffs' assertions that Defendants somehow waived their right to assert mootness is unconvincing. Plaintiffs also state that they have been prejudiced by this Court's "sua sponte" dismissal order because they were not given the opportunity to argue against the dismissal of their claims. They then cite to a few cases where courts, including the Seventh Circuit, counsel against sua sponte dismissals. For instance in Shockley v. Jones, the court explained that "even when the dismissal is on jurisdictional grounds, unless the defect is clearly incurable a district court should grant the plaintiff leave to ...