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APC Filtration, Inc. v. Becker

January 26, 2009


The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

District Judge Robert M. Dow, Jr.


On December 22, 2008, Defendants William A. Becker and SourceOne Plus, Inc. filed a motion to reopen discovery [208] and a motion for leave to file a responsive pleading, including a motion to dismiss, or in the alternative, an amended answer and counterclaim [210]. The motions come sixteen months after the close of discovery and more than four months after the Court entered summary judgment in favor of Plaintiff on Counts III (breach of fiduciary duty) and VI (violation of the Illinois Trade Secrets Act) of Plaintiff's complaint.*fn1 Nevertheless, the Court requested that Plaintiff APC Filtration, Inc. file responses to both motions, which it did on January 15, 2009 [216, 217]. The Court also has considered the arguments set forth in Defendants' proposed reply brief.*fn2 For the following reasons, the Court denies Defendants' motion to reopen discovery [208] and Defendants' motion for leave to file a responsive pleading including a motion to dismiss, or in the alternative, an amended answer and counterclaim [210].

I. Motion to Reopen Discovery

A. Standard

As a general rule, the decision whether to grant a motion to reopen discovery rests within the sound discretion of the court. Winters v. Fru-Con, Inc., 498 F.3d 734, 743 (7th Cir. 2007); Ty, Inc. v. Publ'ns Int'l, Ltd., 2003 WL 21294667, at *6 (N.D. Ill. June 4, 2003) (denying request to reopen discovery after summary judgment was filed). Here, Defendants had a full opportunity to take discovery in this case while represented by their original counsel. Discovery closed in this case on September 23, 2007, after which the parties fully briefed motions for summary judgment. As the Seventh Circuit consistently has stressed, summary judgment is "not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Hammel v. Eau Calle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005). Once that moment has passed, a district court is "not required to give [Defendants] a 'do over'" (Winters, 498 F.3d at 743), even where, as here, Defendants have obtained new counsel.

B. Analysis

The facts in this case have been set forth in detail in the Court's Memorandum Opinion and Order of August 4, 2008, as well as by both Judge Gettleman and Judge Ashman in their prior orders and again by this Court in its ruling of Defendants' motion to reconsider, filed contemporaneously with this order. Therefore, the Court moves directly to the present motions. Defendants contend that they recently learned of two circumstances that might seriously compromise the credibility and reliability of two of APC's primary witnesses and that discovery must be reopened to allow the factual record to be developed on those "critical" issues.*fn3

1. Russell Kelly's Health

On "information and belief," Defendants assert that APC's President suffered from a serious medical condition "about a year ago" and that as a result of that medical condition, "Mr. Kelly's memory likely was impaired," including at the time of his deposition in this case. Mot. at 6. Defendants do not indicate the basis for their belief, leaving the Court to guess at the genesis of the information or to assume that they "recently learned" of Mr. Kelly's alleged tumor from the same former APC employee referred to elsewhere in their motion. Defendants' assertion is a wholly insufficient ground upon which to reopen discovery. In addition to its untimeliness, the assertion is highly speculative. Notably, Defendants have not identified a single statement by Mr. Kelly in a deposition or in Plaintiff's summary judgment materials that suggests any impairment of Mr. Kelly's memory or mental faculties. Defendants' unsupported speculation is not a proper ground on which to reopen discovery as to Mr. Kelly.

2. Tammy Kelly's Veracity

Again "on information and belief," Defendants contend that APC's Chief Financial Officer may have "lied" on the issue of whether or not the 2003 Non-Disclosure Undertaking signed by Becker was attached to his revised compensation plans in subsequent years. First, Defendants' claims are not supported by a reliable source. Defendants' support for its attack on Tammy Kelly's credibility is that they have obtained "new information" from "one of APC's former employees." Defendants did not submit an affidavit from the former employee -- or even identify the former employee in their initial brief -- nor do they provide any specific information about what the former employee told them to lead them to characterize the alleged inaccuracy in Ms. Kelly's testimony as a "lie" rather than a "mistake" or a "misapprehension." That sort of thinly substantiated allegation provides little or no support for reopening the discovery window that was shut well over a year ago.

Moreover, even if Defendants had provided more compelling support for their attack on Ms. Kelly's veracity, Defendants are mistaken in their contentions that the Court (i) discounted Mr. Becker's position that the non-disclosure agreement was not attached to his compensation plans for 2004-06 and (ii) relied on the existence or validity of the non-disclosure agreement in ruling on the motion for partial summary judgment. To the contrary, the Court was aware that the existence and validity of the non-disclosure agreement was in dispute, noting in its order APC's position that it required all of its employees to sign non-disclosure agreements and Becker's contention that APC failed to secure a valid and enforceable non-disclosure agreement with him. DE 167, pp. 17-18. The Court nevertheless granted summary judgment in favor of APC because "APC's confidential information is entitled to protection under the ITSA, regardless of whether an enforceable non-disclosure agreement exists." DE 167, p. 17 (emphasis added); see also Mangren Research & Dev. Corp. v. Nat'l Chem. Co., Inc., 87 F.3d 937, 943 (7th Cir. 1996); Dulisse v. Park Int'l Corp., 1998 WL 25258, at *3 (N.D. Ill. Jan. 9, 1998). Accordingly, APC is correct that even if one of its former employees "were willing to come forward and provide testimony that somehow cast doubt on whether or not there was an enforceable non-disclosure agreement, it would not change the Court's ruling." [217, at 5.] Finally, even if additional discovery revealed that Ms. Kelly's testimony about the agreement was untruthful -- rather than simply a mistaken recollection -- the result in this case would not change. While the equities would not be as one-sided in Plaintiff's favor, they would not favor Defendants in any event in view of Becker's history of serious transgressions that have been well chronicled in the prior decisions in this case.

Challenges to Tammy Kelly's veracity on this issue, raised sixteen months after discovery closed, is not the discovery of new and potentially case-altering evidence that either was not available or that diligent but unsuccessful efforts failed to uncover during and up to the time at which the summary judgment opinion was rendered. Instead, this "new information" represents the attestation of an unidentified individual regarding an issue of material fact that the Court recognized as disputed and had no bearing on the Court's disposition of either the breach of fiduciary or misappropriation of ...

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